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Full text of "North Carolina Register v.14 no. 19 (4/3/2000)"

^f'l*^f '-'?^/./?S^//V^7 



NORTH CAROLINA 



REGISTER 



IE 14 



ISSUE 19 • Pages 1664 - 



imL 





AprU 3, 2000 
IN THIS ISSUE 

Elections - Campaign Advertising 

ENR - Corrected Summary of Notice of Intent to Redevelop 

a Brownfields Property 
Revenue - Tax Review Board 
Agriculture 
Community Colleges 
Cosmetic Art Examiners 
Cultural Resources 
Dental Examiners, Board o? 
Enviroimient and Natural Resourc.es 
Health and Himian 
Insurance!^ ^"""^ "" 
Justice Xf 
Labor 

Physical Therapy Examiners, Board of 
Secretary of State % " .^-'t^^'^ 
Rules Review Commission 
Contested Case Decisions 





f7, ■■ ... 



ative Hearings 



y ;>,.»'?< ; iS 1462 



RECEIVED 
APR 4 2000 

KATHRiNE R. EVERETT 
LAW LIBRARY 



This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11.13 



For those persons that have questions or concerns regarding the Administrative Procedure Act or any of its 
components, consult with the agencies below. The bolded headings are typical issues which the given 
agency can address, but are not inclusive. 



Rule Notices. Filings, Register. Deadlines, Copies of Proposed Rules, etc 

Office of Administrative Hearings 

Rules Division 

Capehart-Crocker House 1^ f^l^ 

424 North Blount Street 

Raleigh, North Carolina 27601-2817 



(919) 733-2678 
(919) 733-3462 FAX 



contact: Molly Masich, Director APA Services 
f/ Ruby Creech, Publications Coordinator 

if/ 



mmasich@oah.state, 
rcreech@oah.state.nc 



/// «*^ // 



A 



Fiscal Notes & Economic Analysis 

Office of State Budget and Management 

116 West Jones Street 

Raleigh, North Carolina 27603-8005 

contact: Warren Plonk, Economist III 




\.^f^^. 





(919)733-7061 
(919) 733-0640 FAX 

.wplonk@osbm.state 

¥ Ji u u 
Tl©l§ 



(919) 733-2721 
(919) 733-9415 FAX 



II 
Rule Review and Legal Issues 

, Rules Review Commission 
\ 1307 Glenwood Ave., Suite 159 
Raleigh, North Carolina 27605 

contact: Joe DeLuca Jr., Staff Director Coimsel 
Bobby Bryan, Staff Attorney - 

Le gislative Process Concerning Rule-making 

Joint Legislative Administrative Procedure Oversight Committee 

545 Legislative Office Builduigx^ ^ 

300 North Salisbury Street ^'*^^^^^^^^::>>w^^ (919) 733-2578 

Raleigh, North Carolina 27611 ^'^~^*''^^^^^^^^^^^^ 715-5460 FAX 



^ 



contact: MaryShupiag, Staff Liaison 





inaiys@ms.ncga.state.nc.us --^ 



County and Municipality Government Questions or Notification 

NC Association of County Commissioners 

215 North Dawson Sb-eet (919)715-2893 

Raleigh, North Carolina 27603 

contact: Jim Blackburn or Rebecca Troutman 



NC League of Municipalities 
215 North Dawson Street 
Raleigh, North Carolina 27603 

contact: Paula Thomas 



(919)715-4000 



This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11.13 



NORTH CAROLINA 
REGISTER 




Volume 14, Issue 19 
Pages 1664 - 1807 



April 3, 2000 



This issue contains documents officially filed 
through March 13,2000. 



Office of Administrative Hearings 

Rules Division 

424 North Blount Street (27601) 

6714 Mail Service Center 

Raleigh, NC 27699-6714 

(919)733-2678 

FAX (919) 733-3462 



Julian Mann III, Director 

Camille Winston, Deputy Director 

Molly Masich, Director of APA Services 

Ruby Creech, Publications Coordinator 

Linda Dupree, Editorial Assistant 

Jessica Flowers, Editorial Assistant 

Dana Sholes, Editorial Assistant 



IN THIS ISSUE 

I. IN ADDITION 

ENR - Corrected Summary of Notice of Intent 

to Redevelop a Brownfields Property 1 664 

Elections - Campaign Advertising 1665 - 1668 

Revenue - Tax Review Board 1669 - 1683 

n. RULE-MAKING PROCEEDINGS 
Agriculture 

Structural Pest Control Committee 1 684 

Veterinary Division 1684 

Environment and Natural Resources 

Environmental Management 1686 - 1688 

Health Services 1 688 

Health and Human Services 

Medical Care Commission 1684 

Social Services Commission 1684 - 1685 

Labor 

Controlled Substances Exam. Regulation 1685 - 1686 

Private Personnel Services 1685 

Wage and Hour 1685 

Licensing Boards 

Cosmetic Art Examiners 1688 

m. PROPOSED RULES 

Environment and Natural Resources 

Health Services 1692 - 1697 

Justice 

Criminal Justice Ed & Training Standards 1 689 - 1 692 

Licensing Boards 

Dental Examiners, Board of 1697 - 1701 

rV. TEMPORARY RULES 

Environment and Natural Resources 

Wildlife Resources 1703 - 1704 

Health and Human Services 

Social Services Commission 1702 - 1703 

V. APPROVED RULES 1705 - 1771 

Agriculture 

Veterinary Division 
Community Colleges 

Community Colleges 
Culture Resources 

Archives and History 
Environment and Natural Resources 

Coastal Management 

Departmental Rules 

Environmental Management 

Marine Fisheries 
Health and Human Services 

Facility Services 

Health Services 
Insurance 

Agent Services Division 

Life and Health Division 

Special Services Division 
Licensing Boards 

Dental Examiners, Board of 

Physical Therapy Examiners, Board of 
Secretary of State 

Securities Division 

VI. RULES REVIEW COMMISSION 1772-1781 

VII. CONTESTED CASE DECISIONS 

Index to ALJ Decisions 1782-1793 

Text of Selected Decisions 

99 DOJ 0068 1794 - 1799 

99 0SP 1157 1800- 1807 

VIII. CUMULATIVE INDEX 1-107 



North Carolina Register is published semi-monthly for $195 per year by the OfTlce of Administrative Hearings, 424 North Blount Street, Raleigh, NC 
27601 . (ISSN 1 5200604) to mail at Periodicals Rates is paid at Raleigh, NC. POSTMASTER: Send Address changes to the North Carolina Register, 
PO Drawer 27447, Raleigh, NC 2761 1-7447. 



NORTH CAROLINA ADMINISTRATIVE CODE CLASSIFICATION SYSTEM 



The North Carolina Administrative Code (NCAC) has four major subdivisions of rules. Two of these, titles and chapters, 
are mandatory. The major subdivision of the NCAC is the title. Each major department in the North Carolina executive 
branch of government has been assigned a title number. Titles are further broken down into chapters which shall be 
numerical in order. The other two, subchapters and sections are optional subdivisions to be used by agencies when 
appropriate. 



TITLE/MAJOR DIVISIONS OF THE NORTH CAROLINA ADMINISTRATIVE CODE 



TITLE 


DEPARTMENT 


LICENSING BOARDS 


CHAPTER 


1 


Administration 


Acupuncture 


1 


2 


Agriculture 


Architecture 


2 


3 


Auditor 


Athletic Trainer Examiners 


3 


4 


Commerce 


Auctioneers 


4 


5 


Correction 


Barber Examiners 


6 


6 


Council of State 


Certified Public Accountant Examiners 


8 


7 


Cultural Resources 


Chiropractic Examiners 


10 


8 


Elections 


Employee Assistance Professionals 


11 


9 


Governor 


General Contractors 


12 


10 


Health and Human Services 


Cosmetic Art Examiners 


14 


11 


Insurance 


Dental Examiners 


16 


12 


Justice 


Dietetics/Nutrition 


17 


13 


Labor 


Electrical Contractors 


18 


14A 


Crime Control & Public Safety 


Electrolysis 


19 


15A 


Environment and Natural Resources 


Foresters 


20 


16 


Public Education 


Geologists 


21 


17 


Revenue 


Hearing Aid Dealers and Fitters 


22 


18 


Secretary of State 


Landscape Architects 


26 


19A 


Transportation 


Landscape Contractors 


28 


20 


Treasurer 


Massage & Bodywork Therapy 


30 


*21 


Occupational Licensing Boards 


Marital and Family Therapy 


31 


22 


Administrative Procedures (Repealed) 


Medical Examiners 


32 


23 


Community Colleges 


Midwifery Joint Committee 


33 


24 


Independent Agencies 


Mortuary Science 


34 


25 


State Personnel 


Nursing 


36 


26 


Administrative Hearings 


Nursing Home Administrators 


37 


27 


NC State Bar 


Occupational Therapists 


38 






Opticians 


40 






Optometry 


42 






Osteopathic Examination & Reg. (Repealed) 


44 






Pastoral Counselors, Fee-Based Practicing 


45 






Pharmacy 


46 






Physical Therapy Examiners 


48 






Plumbing, Heating & Fire Sprinkler Contractors 


50 






Podiatry Examiners 


52 






Professional Counselors 


53 






Psychology Board 


54 






Professional Engineers & Land Surveyors 


56 






Real Estate Appraisal Board 


57 






Real Estate Commission 


58 






Refrigeration Examiners 


60 






Sanitarian Examiners 


62 






Social Work Certification 


63 






Soil Scientists 


69 






Speech & Language Pathologists & Audiologists 


64 






Substance Abuse Professionals 


68 






Therapeutic Recreation Certification 


65 






Veterinary Medical Board 


66 



Note: Title 21 contains the chapters of the various occupational licensing boards. 





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IN ADDITION 



This Section contains public notices that are required to be published in the Register or have been approved by the Codifier 
of Rules for publication. 



CORRECTED SUMMARY OF NOTICE OF 
INTENT TO REDEVELOP A BROWNFIELDS PROPERTY 

CK LAND DEVELOPMENT, INC. 

Pursuant to G.S. 1 30A-3 10.34, CK Land Development, Inc. has filed with the North Carolina Department of Environment and 
Natural Resources ("DENR") a Notice of Intent to Redevelop a Brownfields Property ("Property") in Charlotte, Mecklenburg County, 
North Carolina. The Property consists of tax parcels 123-041-14 through 123-041-21, which comprise 2.84 acres at the northeast 
comer of the intersection of South Boulevard and East Park Avenue. Environmental contamination exists on the Property in 
groundwater and soil. CK Land Development, Inc. has committed itself to make no other use of the Property than for shops, offices 
and residences. The Notice of Intent to Redevelop a Brovrafields Property includes: ( 1 ) a proposed Brownfields Agreement between 
DENR and CK Land Development, Inc., which in turn includes (a) a legal description of the Property, (b) a map showing the location 
of the Property, (c) a description of the contaminants involved and their concentrations in the media of the Property, (d) the above- 
stated description of the intended future use of the Property, and (e) proposed investigation and remediation; and (2) a proposed Notice 
of Brovmfields Property prepared in accordance with G.S. 130A-3 10.35. The full Notice of Intent to Redevelop a Brownfields 
Property may be reviewed in the Carolina Room at the Main Branch of the Public Library of Charlotte and Mecklenburg County, 310 
N. Tryon Street, Charlotte, NC 28202, (704) 336-2980; or at 401 Oberlin Rd., Raleigh, NC 27605 by contacting Scott Ross at that 
address, at scott.ross@ncmail.net, or at (9 1 9) 733-2801 , ext. 328. Written public comments may be submitted to DENR within 60 days 
of the date of this Notice. Written requests for a public meeting may be submitted to DENR within 30 days of the date of this Notice. 
All such comments and requests, and/or requests to view the full Notice of Intent, should be addressed as follows: 

Mr. Bruce Nicholson 

Head, Special Remediation Branch 

Superfund Section 

Division of Waste Management 

NC Department of Environment and Natural Resources 

401 Oberlin Road, Suite 150 

Raleigh, North Carolina 27605 

This Corrected Summary corrects the Mecklenburg County location for reviewing the full Notice of Intent which was listed incorrectly 
in the summary published March 5, 2000 in this newspaper. 



I 






14:19 NORTH CAROLINA REGISTER April 3, 2000 1664 



IN ADDITION 



STATE BOARD OF ELECTIONS 

133 Fayetteville Street Mall 

Suite 100 

Raleigh, North Carolina 27601 

GARY O. BARTLETT Mailing Address: 

Executive Secretary-Director P.O. Box 2129 

RALEIGH, NC 27602 
(919)733-7173 
FAX (919) 715-0135 
February 17, 2000 



Mr. Ray C. Tutterow, Advertising Director 

Davie County Enterprise Record 

Post Office Box 99 

Mocksville, North Carolina 27028 

Re: Campaign Advertising 

Dear Mr. Tutterow: 

Your letter asks several questions about disclosure for the media advertisement portion of the 1 999 Campaign Reform Act. 
You seek an opinion pursuant to G.S. 163-278.23 because you are a candidate for Davie County Register of Deeds. 

After carefiil review by staff and counsel with the General Assembly and the Office of the Attorney General, the undersigned 
officer offers the following answers to your questions and provides the attached opinion. 

The answer to your first question is yes. All advertisements in the print media require disclosure in the form of a "legend" or 

the statement: "Paid for by (Name of candidate, candidate campaign committee, political party organization, political action 

committee, referendum committee, individual, or other sponsor)." The legend must be 5% of the height of the printed space of the 
advertisement, but can be no smaller than 12 point type (This is 12 point type). 

The second question has several parts. In answer to the first part: small "business" or "palm" cards require a legend if the card 
includes support or opposition to clearly identified candidates or the candidates of a clearly identified political party. A card of any 
size that expressly advocates the election or defeat of a candidate must have a legend that is 5% of the height of the card, but no smaller 
than 1 2 point type. 

The final part of the second question asks about posters displayed in yards and in windows. Yard signs and window signs 
(approximately 14 x 22 inches), and bam signs (3x5 foot or similarly sized, posters used on the sides of buildings, on walls, etc., 
generally without paying rental costs) are not considered media advertisements and do not require a legend. 

Campaign paraphernalia such as balloons, bumper stickers, shopping bags, and nail files, etc., imprinted with a campaign 
message are not considered media advertisements and do not require a legend. 

I trust these answers and the opinion provide the information you are seeking. Do not hesitate to contact this office any time 
you have questions. 

Sincerely, 

Gary O. Bartlett 

Executive Secretary-Director 



1665 NORTH CAROLINA REGISTER April 3, 2000 14:19 



IN ADDITION 



MEDIA ADVERTISEMENTS 

Media is defined as 

• "print media" meaning billboards, cards, newspapers, newspaper inserts, magazines, mass mailings (more than 500 
pieces), pamphlets, fliers, periodicals, and outdoor advertising facilities; 

• "radio" meaning any radio broadcast station that is subject to the provisions of the Federal Communications Act; and 

• "television" meaning any television broadcast station, cable system, satellite company, or telephone company 
transmitting video programming that is subject to the Federal Communications Act. 

Media advertisements should be made through the treasurer of the political committee after an Organizational Report is filed or as 
independent expenditures. Any media advertisement made by a treasurer, candidate, political party, political or referendum committee 
must: 

(1) Bear the legend or include the statement: "Paid for by.... (or sponsored by).... (Nameof candidate, political, or 
referendum committee, individual)". In television advertisements, this disclosure shall be made by visual legend. 

(2) The name used in the labeling required immediately above is the name that appears on the statement of organization 
if the sponsor is a political or referendum committee. 

(3) The sponsor must state in the advertisement its position for or against the candidate. This requirement applies only 
if the advertisement supports or opposes the nomination or election of one or more clearly identified candidates. 

(4) The sponsor states in the advertisement its position for or against a ballot measure, provided that these requirements 
apply only if the advertisement is made for or against a ballot measure. 

(5) In a print media advertisement supporting or opposing the nomination or election of one or more clearly identified 
candidates, the sponsor must state whether it is authorized by a candidate. The visual legend in the advertisement 
shall state either "Authorized by (name of candidate), for (name of office)" or "Not Authorized by a candidate." 
These requirements do not apply if the sponsor of the advertisement is the candidate the advertisement supports or 
that candidate's campaign committee. 

(6) In a print media advertisement that identifies a candidate the sponsor is opposing, the sponsor must disclose in the 
advertisement the name of the candidate who is intended to benefit from the advertisement. This requirement applies 
only when the sponsor coordinates or consults about the advertisement or the expenditure for it with the candidate 
who is intended to benefit. 

(7) In a television ad, visual disclosure that constitutes 32 scan lines in size is required. The person making the disclosure 
statement must appear in a fiiU-screen image, using either a photograph or actual appearance. This picture must be 
seen throughout the disclosure. 

(8) In a radio ad, verbal disclosure that lasts at least 3-seconds is required. 

(9) In radio and television ads, the sponsoring candidate must speak the disclosure statement, "I am candidate for 

office, and I (or my campaign) sponsored this ad." This is required only when the advertisement mentions the 

name of. shows the picture of, transmits the voice of. or otherwise refers to an opposing candidate for the same office 
as the sponsoring candidate. 

(10) In radio and television ads, political party ads must include a disclosure statement spoken by the chair, executive 

director, or treasurer of the party organization. "The Party organization sponsored this ad opposing/supporting 

candidate for office." The party name shall be as it appears on the ballot. The same disclosure must 

be included when the sponsor is a political action committee, individual or any sponsor. 

(11) In radio and television ads, a sponsor may place the disclosure statement at any time during the ad, except if the 
duration of the ad is more than 5 minutes, the statement shall be made both at the begirming and end of the 
advertisement. 

(12) Placement of the visual and oral disclosure must comply with the Communications Act of 1934, 47 U.S.C. §§ 315 
and 317. 

If an advertisement described above is jointly sponsored. The disclosure statement must name all the sponsors. 

No declared candidate for Council of State offices effective January 1 in the election year for those offices shall use or permit the use 
of State funds for any advertisement or public service announcement in a newspaper, on radio, or on television that contains that 
declared candidate's name, picture, or voice, except in case of State or national emergency and only if the announcement is reasonably 
necessary to that candidate's official function. Declared means a public announcement of an intention to run. 

Simplified lists of the specific items that both require and do not require a legend and other disclosure are below. 

Legend required: 

/ Newspaper ads 

/ Newspaper inserts 

/ Magazines 

/ Periodicals 



14:19 NORTH CAROLINA REGISTER April 3, 2000 1666 



IN ADDITION 



/ Outdoor advertising facilities 

/ Radio ads 

/ TV ads 

/ Billboards 

/ Sound-truck advertising 

/ Airplane Streamers 

/ Portable Signs (lighted or non-lighted; some on wheels to be pulled around) 

/ Pamphlets* 

/ Fliers* 

/ Mass mailings (over 500 pieces)* 

/ Cards* 

Legend not required: 

X Buttons, and bumper stickers 

X Yard signs and window posters (approximately 14 x 22 inches and posters used in stores, on states in yards, etc.) 

X Bam posters (3x5 feet, or similarly sized, used on the sides of buildings, on walls, etc., generally at no cost) 

X Campaign paraphernalia such as balloons, shopping bags, nail files, etc., imprinted with a campaign message. 

*These types of media advertisements are added to those requiring a legend and other additional disclosure for the first time in 2000 
Elections. In these now considered media advertisements, the legend and other disclosure is required if the item, the pamphlet, flier, 
mailing, or card includes support or opposition to clearly identified candidates or the candidates of a clearly identified political party. 
A card, regardless of the size, that expressly advocates the election or defeat of a candidate must have a legend that is 5% of the height 
of the card, but no smaller than 12 point type. (This is 12-point type) Refer to N.C.G.S. 163-278. 14A to determine advocacy. 



Campaign Reporting Opinion issued pursuant to N.C.G.S. 163-278.23 
By Gary O. Bartlett, Executive Secretary-Director, State Board of Elections 



1667 NORTH CAROLINA REGISTER April 3, 2000 14:19 



IN ADDITION 



DAVIE COUNTY 
ENTERPRISE RECORD 



Davie County's Choice For 
NEWS • SPORTS • ADVERTISING 



January 6, 2000 

To: Gary O. Bartlett 

Executive Secretary - Director 
State Board of Elections 

Re: Campaign Advertising 

Mr. Bartlett: 

I am the Advertising Director for the Davie County Enterprise Record and have recently filed to run for the Davie County Register 
of Deeds position. I am writing for some clarification on information contained in a brochure I received entided "Stand By Your Ad, 
Campaign Reform Act of 1999." I would like an opinion to G.S. 163-278.23. 

My concerns are: 

1 ) The brochure states that ads in print media must have a disclosure statement at least 5% of the height of the ad and it must be at least 
12 point type. 

- DOES THIS APPLY TO EVEN THE SMALLEST OF ADS? 

Often candidates will run small 1 or 2 inch tall ads and this point size would be very large for that size ad. 

2) Also, since the definition of "print media" has been expanded to include more items... 

- DO THE SMALL "BUSINESS CARD" SIZED CARDS THAT MANY CANDIDATES USE TO HAND OUT NOW 
REQUIRE A DISCLAIMER? 

- DOES THE DISCLAIMER NEED TO BE ON SMALL POSTERS THAT ARE PUT IN YARDS AND IN 
WINDOWS? 

- IF THE DISCLAIMER IS REQUIRED FOR THESE ITEMS DOES THE 12 POINT MINIMUM SIZE 
REQUIREMENT STILL APPLY? 

I would appreciate a response as soon as possible. For your convenience I have enclosed a copy of the parts of the brochure I am 
referring to. In addition to this fax I am also sending a copy by mail. If possible, please fax your response to me at (336) 751-9760 
as soon as possible. A mailed copy would also be appreciated. 



Ray C. Tutterow 

Davie County Enterprise Record Advertising Director 

Candidate for Davie County Register of Deeds 



P.O. Box 171 South Main Street Mocksville, NC 27028 
Phone: 336-751-2120 or 336-751-2129 Fax: 336-751-9760 



14:19 



NORTH CAROLINA REGISTER 



April 3, 2000 



1668 



IN ADDITION 



STATE OF NORTH CAROLINA 

COUNTY OF WAKE 
IN THE MATTER OF: 

The Proposed Assessment of Additional 
Income Tax for the Taxable Year 1997 
by the Secretary of Revenue 

vs. 

Charles E. Schmidt 
Taxpayer 



BEFORE THE 
TAX REVIEW BOARD 



ADMINISTRATIVE DECISION 
Number: 357 



This matter was heard before the Regular Tax Review Board in the City of Raleigh, Wake County, North Carolina, on Friday, 
October 8, 1999, upon Taxpayer's petition for administrative review of the Final Decision of the Assistant Secretary of Revenue 
entered on April 15, 1999, sustaining the proposed assessment of additional income tax, as modified, for tax year 1997. 

The Taxpayer did not appear at the hearing. Marilyn R. Mudge, Assistant Attorney General appeared at the hearing on behalf 
of the Secretary of Revenue. 

Chairman Harlan E. Boyles, State Treasurer presided over the hearing with Jo Anne Sanford, Chair, Utilities Commission 
and duly appointed member, Noel L. Allen, Attorney at Law participating. 

Taxpayer timely filed a 1 997 North Carolina individual income tax return, attaching wage and tax statements reflecting 
compensation received from Lake Norman C-P-D, Inc., in the amount of $53,575.58. On the face of the return the taxpayer reported 
each of the following as $0.00: federal taxable income. North Carolina taxable income, and North Carolina tax. The Taxpayer also 
requested a refund of $1,486.00, the entire amount of North Carolina income tax withheld by his employer. 

Pursuant to G.S. 105-241.1, a Notice of Individual Income Tax Assessment for the taxable year 1997 was mailed to the 
Taxpayer on August 2, 1 998, proposing additional income tax and accrued interest. The Taxpayer obj ected to the proposed assessment 
and timely requested a hearing before the Secretary of Revenue. From the Assistant Secretary's decision sustaining the proposed 
assessment of additional income tax, as modified, and pursuant to G.S. 1 05-24 1 .2, Taxpayer timely filed a notice of intent and petition 
for administrative review of the Assistant Secretary's final decision with the Tax Review Board. 



ISSUE 



The issue to be decided in this matter is as follows: 



1 . Is the individual income tax assessment proposed against Taxpayer for the taxable year 1997 lawfiil and proper? 

EVIDENCE 

The evidence presented at hearing before the Secretary of Revenue and included in the record transmitted to the Board is 
stated as follows: 

L Memorandum dated April 1 8, 1996, from the Secretary of Revenue to the Assistant Secretary of Revenue, a copy 

designated as Exhibit PT-1. 

2. Taxpayer's North Carolina income tax return for the taxable year 1997, a copy designated as Exhibit PT-2. 

3. Notice of Individual Income Tax Assessment for the taxable year 1997 dated August 2, 1998, a copy designated 
as Exhibit PT-3. 

4. Notice of Amended Individual Income Tax Assessment for taxable year 1997 dated September 24, 1998, a copy 
designated as Exhibit PT-4. 

5. Letter dated September 1 , 1 998, from the Taxpayer to the North Carolina Department of Revenue, a copy 
designated as Exhibit PT-5. 



1669 



NORTH CAROLINA REGISTER 



April 3, 2000 



14:19 



IN ADDITION 



6. Letter dated September 23, 1998, from Carolina A. Smith, Administrator Officer in the Personal Taxes Division, 
to Taxpayer, a copy designated as Exhibit PT-6. 

7. Letter dated October 23, 1998, from Taxpayer to the North Carolina Department Revenue, a copy designated as 
Exhibit PT-7. 

8. Letter dated October 28, 1998, from Caroline A. Smith to the Taxpayer, a copy designated as Exhibit PT-8. 

9. Letter dated November 19, 1998, from Caroline A. Smith to the Taxpayer, a copy designated as Exhibit PT-9. 

10. Letter dated December 1, 1998, from Caroline A. Smith to the Taxpayer, a copy designated as Exhibit PT-10. 

1 1 . Letter dated January 5, 1 999, from Michael A. Hannah to the Taxpayer, a copy designated as Exhibit PT- 1 1 . 

At the hearing, the Assistant Secretary allowed the Taxpayer time to submit any additional pertinent information for the 
record to support his objection to the proposed assessment. The following evidence was subsequently entered into record: 

1. Letter dated February 11, 1999, from Michael A. Hannah to the Taxpayer, a copy designated as Exhibit S-1. 

2. Letter dated March 15, 1999, from Michael A. Hannah to the Taxpayer, a copy designated as Exhibit S-2. 

FINDINGS OF FACT 

The Board reviewed the following findings of fact in the Assistant Secretary's decision: 

1 . Taxpayer is and at all material times was a natural person, sui juris, and citizen and resident of North Carolina. 

2. Taxpayer was employed by Lake Norman C-P-D, Inc., during the taxable year 1 997. His wage and tax statements 
reflect wages tips, and other compensation of $53,575.58. 

3. The employer withheld State income tax of $ 1 ,486.00. 

4. Taxpayer timely filed his North Carolina individual income tax retiun for tax year 1 997. The return reflected 
federal taxable income of $-0-, North Carolina income of $-0-, North Carolina income tax withheld of $1,486.00 
and an overpayment of $1,486.00 which taxpayer requested to be refiinded to him. 

5. The Department calculated taxpayer's North Carolina taxable income based on the wages reported on the wage and 
tax statements, allowing the standard deduction for married person filing separately and one personal exemption. 

6. A Notice of Individual Income Tax Assessment proposing an assessment of additional income tax and accrued 
interest was mailed to taxpayer on August 2, 1998. 

7. Taxpayer objected to the proposed assessment and timely requested a hearing before the Secretary of Revenue. 

8. A Notice of Amended Individual Income Tax Assessment was mailed to Taxpaver on September 24. 1998, reducing 
the State income tax and standard deduction/personal exemption adjustments from $1,600 to $1,100. 

9. In error, the Department allowed Taxpayer the standard deduction for a married person filing separately. 

10. A Taxpayer may not claim the standard deduction when he is married and filing a separate return and his spouse 
claims itemized deduction. The corrected North Carolina taxable income resulted in North Carolina income tax 
of $3,294.00. Taxpayer was assessed the difference in the tax of $3,294.00 and the State tax withheld of $ 1 ,486.00 
for additional tax of $1,808.00 plus interest of $128.11. 

CONCLUSIONS OF LAW 

The Board reviewed the following conclusions of law in the Assistant Secretary's decision: 

1 . Division 11 of Article 4 in Chapter 1 05 of the North Carolina General Statute imposes and individual income tax 
upon the taxable income of (1) every resident of this State and (2) every nonresident individual deriving income 
ft'om North Carolina sources attributable to the ownership of any interest in real or tangible personal property in 
this State or deriving income from a business, ttade, profession, or occupation carried on in this State. 

2. A "taxpayer" is defined as an individual subject to the tax imposed by Division II of Article 4 in Chapter 105. An 
"individual" is defined as a human being. 

3. For residents of this State, "North Carolina taxable income" is defined as the taxpayer's taxable income as 
determined under the Internal Revenue Code, adjusted for differences in State and Federal law. 

4. Federal taxable income is defined in section 63 of the Internal Revenue Code as gross income less deductions and 
personal exemptions. Gross income is defined in section 61 of the Code as all income from whatever source 
derived unless specifically excepted. Gross income includes compensation for services rendered (Reg. Sec. 61 
(a)( 1 ).) Wages, salaries, commissions paid salesmen, compensation for services on the basis of a percentage of 
profits, tips, and bonuses are all includable in gross income (Reg. Sec. 1.61 -2(a)(1).) If taxpayer files his return as 
married filing separately and his spouse claims itemized deductions, he may not claim the standard deduction. A 

14:19 NORTH CAROLINA REGISTER April 3, 2000 1670 



IN ADDITION 



married taxpayer filing separately with no dependents is entitled to one personal exemption. The deduction for each 
exemption was established as $2,000 for tax years prior to 1 990 and is increased each year for inflation (Reg. Sec. 
151). For tax year 1 997, the allowable deduction for each exemption for federal income tax purposes was $2,650. 

5. An addition to federal taxable income is required for the amount by which a taxpayer's standard deduction has been 
increased for inflation and for the amount by which the taxpayer's personal exemption has been increased for 
inflation. 

6. Assessments proposed by the Department must be based on the best information available and are presumed to be 
correct. 

7. The Secretary of Revenue, or her designated agent, has the power to examine any records relevant to the purpose 
of ascertaining the correctness of an income tax return or the proper amount of income tax liability. 

8. The duties of the Secretary of Revenue include administering the laws enacted by the General Assembly relating 
to the assessment and collection of individual income taxes. As an official of the Executive Branch of the 
government, the Secretary lacks the authority to determine the constitutionality of legislative acts. The question 
of constitutionality of a statute is for the judicial branch. 

9. The proposed assessment, as modified, for the taxable year 1 997 was properly issued and, under the facts, is lawful 
and proper. 

DECISION 

The scope of administrative review for petitions filed with the Tax Review Board is governed by G.S. 1 05-241 .2(b2). After 
the Board conducts a hearing this statute provides in pertinent part: 

(b2). "The Board shall confirm, modify, reverse, reduce or 
increase the assessment or decision of the Secretary." 

Assessments of tax are presumed to be correct and the taxpayer has the burden to show that the assessment is not proper. 
From a review of the record, Taxpayer failed to furnish evidence to show that the proposed assessment is this matter was in error. 
Thus, the Board having conducted a hearing in this matter, and having considered the petition, the brief, the record and the Assistant 
Secretary's final decision, concludes that there exist sufficient evidence in the record to confirm the Assistant Secretary's final 
decision. 

WHEREFORE, the Tax Review Board Orders that the Assistant Secretary's final decision sustaining the proposed assessment 
of additional income tax, as modified, for the taxable year 1997 against the Taxpayer is hereby confirmed. 

Made and entered into the 2nd day of February, 2000. 

Signature 



Harlan E. Boyles, Chairman 
State Treasurer 



Signature_ 



Jo Anne Sanford, Member 
Chair, Utilities Commission 



Signature 



Noel L. Allen, Appointed Member 



1671 



NORTH CAROLINA REGISTER 



April 3, 2000 



14:19 



IN ADDITION 



STATE OF NORTH CAROLINA 

COUNTY OF WAKE 
IN THE MATTER OF: 

The Proposed Assessment of Additional 
Sales and Use Tax for the period of March 
1, 1995, through May 31, 1996, by the 
Secretary of Revenue 

vs. 

Hydro Pure, Inc 
Taxpayer 



BEFORE THE 
TAX REVIEW BOARD 



ADMINISTRATIVE DECISION 
Number: 358 



This matter was heard before the Tax Review Board in the city of Raleigh, on October 8, 1 999, upon Taxpayer's petition 
for administrative review of the Final Decision of the Secretary of Revenue entered on March 10, 1999, sustaining the assessment 
of additional sales and use tax for the period of March 1, 1995, through May 31, 1996. 

Attorney C. B. McLean, Jr., appeared at the hearing on behalf of the Taxpayer. Marilyn R. Mudge, Assistant Attorney 
General, appeared at the hearing on behalf of the Secretary of Revenue. 

Chairman Harlan E. Boyles, State Treasurer presided over the hearing with Jo Anne Sanford, Chair, Utilities Commission 
and duly appointed member, Noel L. Allen, Attorney at Law participating. 

Hydro Pure, Inc. (hereinafter "Taxpayer") appeals from the Final Decision of the Secretary of Revenue entered on March 
10, 1999, sustaining the proposed assessment of additional sales and use tax. Taxpayer is engaged in the business of selling and 
installing water treatment equipment that treats and conditions all water coming into a residential household water system. The 
Taxpayer was registered with the Department for sales and use tax purposes during the audit period and Taxpayer remitted tax to the 
Department based on its cost of equipment sold. Taxpayer filed a claim for refund for the difference between the tax paid on receipts 
and tax computed on the cost price of the equipment. On March 1 1 999, the Secretary of Revenue entered a decision sustaining the 
proposed assessment of additional sales and use tax for the period of March 1, 1995 through May 31, 1991. Pursuant to G.S. 105- 
241.2, Taxpayer timely filed notice and petition for administrative review of the Assistant Secretary's final decision with the Tax 
Review Board. 



ISSUE 



The issue to be decided on appeal of this matter is: 



1 . Did the Secretary properly conclude that the Taxpayer is making retail sales of water conditioning equipment, which 

sales are subject to sales tax on the selling price of the equipment? 

EVIDENCE 

The evidence presented at hearing before the Secretary of Revenue and included in the record presented to the Board is as 



follows: 



1 . Fact sheet of field auditor's report and explanation of changes, a copy designated as Exhibit E-1 . 

2. Notice of Tax Assessment for the period March 31, 1995, through May 31,1996, dated March 30, 1998, a copy 
designated as Exhibit E-2. 

3. Information fiimished by Taxpayer to Department of Revenue on January 22, 1998, which relates to Taxpayer's 
business, a copy designated Exhibit E-3. 

4. Information furnished by Taxpayer to the Department on Revenue on February 6, 1998, a copy designated as 
Exhibit E-4. 

5. Letter dated February 6, 1998, from the Department of Revenue to Taxpayer, a copy, designated Exhibit E-5. 

6. Letter dated February 24, 1 998, from the Taxpayer to Department of Revenue, a copy designated as Exhibit E-6. 

7. Letter dated February 25, 1998, from the Department of Revenue to Taxpayer, a copy designated as Exhibit E-7. 



14:19 



NORTH CAROLINA REGISTER 



April 3, 2000 



1672 



IN ADDITION 



8. Letter dated April 8, 1998, from the Department of Revenue to Taxpayer, a copy designated as Exhibit E-8. 

9. Letter dated April 15,1 998, from Taxpayer to Department of Revenue, a copy designated as Exhibit E-9. 

1 0. Letter dated April 22, 1 998, from the Department of Revenue to the Taxpayer, a copy designated as Exhibit E- 1 0. 

1 1 . Refund claim for tax remitted to the Department which was denied, a copy designated as Exhibit E-1 1 . 

12. Taxpayer's application for registration with the Department for sales and use tax purposes, a copy designated as 
Exhibit E-1 2. 

13. Sales and use tax report reflecting transactions reported as sales transactions, a copy designated as Exhibit E-1 3. 

14. Taxpayer's 1995 U.S. Income Tax Return for an S Corporation, a copy designated as Exhibit E-14. 

15. Taxpayer's 1995 N.C. Income and Franchise Tax Return for an S Corporation, a copy designated as Exhibit E-1 5. 

16. Letter dated July 14, 1998, from the Assistant Secretary for Legal and Financial Services, a copy designated as 
Exhibit E-1 6. 

17. Copy of Memorandum dated April 18, 1996, a copy designated as Exhibit E-17. 

1 8. Division's brief for Tax Hearing, a copy designated as Exhibit E-1 8. 

At the hearing, the Assistant Secretary authorized the Sales and Use Tax Division and Taxpayer to submit any additional 
pertinent information within thirty days of the hearing. The following items were submitted by the Taxpayer and were a part of the 
record transferred to the Board: 

L Memorandum dated October 27, 1 998, from the Division to the Assistant Secretary, a copy designated as Exhibit 

E-1 9. 

2. Letter dated September 9, 1998, from the Taxpayer's attorney to the Assistant Secretary, a copy designated as 
Exhibit T-1. 

3. Letter dated October 6, 1 998, from Taxpayer's attomey to the Assistant Secretary, a copy designated as Exhibit T-2. 

4. Letter dated December 1 0, 1 998, from Taxpayer's attomey to the Assistant Secretary, a copy designated as Exhibit 
T-3. 

5. Letter dated August 1 3, 1 998, from the Assistant Secretary to Taxpayer's attomey, a copy designated as Exhibit S- 1 . 

6. Letter dated August 14, 1998,fromthe Assistant Secretary to Taxpayer's attomey, a copy designated as Exhibit S-2. 

7. Redacted copy of a prior Secretary's Decision relating to water treatment equipment, a copy designated as Exhibit 
S-3. 

8. Redacted copy of a prior Secretary's Decision relating to water treatment equipment, a copy designated as Exhibit 
S-4. 

9. Letter dated September 1 5, 1998, from Assistant Secretary to Taxpayer, a copy designated as Exhibit S-5. 

10. Letter dated November 3, 1998, from Assistant Secretary to Taxpayer, a copy designated as Exhibit S-6. 

FINDINGS OF FACT 

The Board considered the following findings of fact made by the Assistant Secretary in determining its decision: 

1 . Taxpayer provides water treatment equipment to users or consumers . Treatment and conditioning of the Taxpayer's 
customer's water are performed by the equipment itself, not by the Taxpayer. 

2. Water treatment equipment is affixed to the real property. 

3. Taxpayer was registered with the Department for sales and use tax purposes during the audit period and the 
Taxpayer remitted tax to the Department on receipts reported. Taxpayer filed a claim for refund for the difference 
between tax paid on receipts and tax computed on the cost price of the equipment. 

4. Taxpayer's claim for refund was denied by the Department. 

5. Taxpayer was assessed tax on uru"eported receipts for water treatment equipment. 

6. The invoice and supporting documentation classifies Taxpayer's activities as a distributor of the United States 
Commercial Water Processor and reflects terms such as "Buyer" and "Seller." 

7. Taxpayer's invoices reflects a typed list price for the water treatment system, tax, nonnal installation, total, down 
payment and the balance. The sales representative, when meeting with a customer, routinely draws a line through 
each charge and writes on the face of the invoice a customary total figure which is less than the balance shown. 
The preprinted tax figure is 6% of the list price, which is the applicable rate. The representative writes "Incl." or 
"Include" on the tax line and "N/C" on the installation line. 

8. The auditor determined the sales price of the water treatment equipment based on the reduction in the total charges. 

9. Taxpayer's 1 995 U.S. Income Tax Return for an S Corporation reflects the business activity of the Taxpayer as sales 
of water purification products. 



1673 NORTH CAROLINA REGISTER April 3, 2000 14:19 



IN ADDITION 



CONCLUSIONS OF LAW 

The Board considered the following conclusions of law made by the Assistant Secretary in the final decision: 

1. Taxpayer's agreement with its customers constitutes a sales contract as opposed to a performance or service 
contract. 

2. Taxpayer is a retailer as defined in G.S. 105-164.3(14). 

3. Taxpayer is "engaged in business" in this State in "selling" "tangible personal property" (water treatment 
equipment) as these terms are defmed in G.S. 105-164.3(5), G.S. 105-164.3(15) and G.S. 105-164.3(20), 
respectively. 

4. Taxpayer properly collected and remitted to the Department tax on its retail sales of water treatment equipment. 

5. Taxpayer is liable for collection and payment of the State and local sales or use tax on the gross receipts derived 
from the sale of tangible personal property (water treatment equipment) in accordance with G.S. 1 05-1 64.4 and G.S. 
105-164.6. 

6. The notice of proposed assessment for the period March 1, 1995, through May 31,1996, was properly issued 
pursuant to G.S. 105-241.1. 

7. The Taxpayer's refimd claim for the difference between tax paid to the Department on receipts and tax computed 
on the cost price was properly denied. 

DECISION 

The scope of administrative review for petitions filed with the Tax Review Board is governed by G.S. 105-241 .2(b2). After 
the Board conducts a hearing this statute provides in pertinent part; 

(hi). "The Board shall confirm, modify, reverse, reduce or 
increase the assessment or decision of the Secretary." 

On October 8, 1999, the Board conducted a hearing in this matter wherein the Board considered the petition filed by the 
Taxpayer, the Secretary's brief, the record filed in this matter, the final decision of Assistant Secretary. The Board also considered 
the arguments of counsel presented at the hearing. Based upon the Board's review this matter, there exist sufficient evidence in the 
record, to confirm the Assistant Secretary's decision as to the assessment of sales and use tax for the period of March 1 , 1 995, through 
May 31,1 996, against the Taxpayer. 

IT IS THEREFORE ORDERED that the Assistant Secretary's final decision that sustained the assessment of additional 
sales and use tax imposed against the Taxpayer for the period of March 1 , 1 995 , through May 31, 1 996 be hereby confirmed in every 
respect. 

Made and entered into this 2"'' day of, February, 2000. 

Signature 



Harlan E. Boyles, Chairman 
State Treasurer 



Signature_ 



Jo Anne Sanford, Member 
Chair, Utilities Commission 



Signature_ 



Noel L. Allen, Appointed Member 



I 



14:19 NORTH CAROLINA REGISTER April 3, 2000 1674 



IN ADDITION 



ADMINISTRATIVE DECISION 



Number: 



359 



STATE OF NORTH CAROLINA BEFORE THE 

TAX REVIEW BOARD 
COUNTY OF WAKE 
IN THE MATTER OF: 

The Proposed Assessment of Additional 
Sales and Use Tax for the period of June 
1, 1996, through November 30, 1997, by the 
Secretary of Revenue 

vs. 

Hydro Pure of Raleigh, Inc 
Taxpayer 

This matter was heard before the Tax Review Board in the city of Raleigh, on October 8, 1 999, upon Taxpayer's petition 
for administrative review of the Final Decision of the Secretary of Revenue entered on March 1 0, 1 999, sustaining the assessment 
of additional sales and use tax for the period of June 1, 1996 through November 30, 1997. 

Attorney C. B. McLean, Jr., appeared at the hearing on behalf of the Taxpayer. Marilyn R. Mudge, Assistant Attorney 
General, appeared at the hearing on behalf of the Secretary of Revenue. 

Chairman Harlan E. Boyles, State Treasurer presided over the hearing with Jo Anne Sanford, Chair, Utilities Commission 
and duly appointed member, Noel L. Allen, Attorney at Law participating. 

Hydro Pure, Inc. (hereinafter "Taxpayer") appeals from the Final Decision of the Secretary of Revenue entered on March 
10, 1999, sustaining the proposed assessment of additional sales and use tax. Taxpayer is engaged in the business of selling and 
installing water treatment equipment that treats and conditions all water coming into a residential household water system. The 
Taxpayer was registered with the Department for sales and use tax purposes during the audit period and Taxpayer remitted tax to the 
Department based on its cost of equipment sold. Taxpayer filed a claim for refund for the difference between the tax paid on receipts 
and tax computed on the cost price of the equipment. On March 1 1 999, the Secretary of Revenue entered a decision sustaining the 
proposed assessment ofadditional sales and use tax for the period of June 1, 1996 through November 30, 1997. Pursuant to G.S. 105- 
241.2, Taxpayer timely filed notice and petition for administrative review of the Assistant Secretary's final decision with the Tax 
Review Board. 



ISSUE 



The issue to be decided on appeal of this matter is: 



\. Did the Secretary properly conclude that the Taxpayer is making retail sales of water conditioning equipment, which 

sales are subject to sales tax on the selling price of the equipment? 

EVIDENCE 

The evidence presented at hearing before the Secretary of Revenue and included in the record presented to the Board is as 



follows: 



1 . Fact sheet of field auditor's report and explanation of changes, a copy designated as Exhibit E- 1 . 

2. NoticeofTax Assessment for the period June 1, 1996, through November 30, 1997, dated March 23, 1998, a copy 
designated as Exhibit E-2. 

3. Notice of Assessment for the month of December 1996, dated May 25, 1998, a copy designated as Exhibit E-3. 

4. Notice of Assessment for the month of February 1997, dated May 25, 1998, a copy designated as Exhibit E-4. 

5. Information furnished by Taxpayer to Department of Revenue on January 22, 1998, which relates to Taxpayer's 
business, a copy designated Exhibit E-5. 

6. Information furnished by Taxpayer to the Department on Revenue on February 6, 1998, a copy designated as 
Exhibit E-6. 

7. Letter dated February 6, 1998, from the Department of Revenue to Taxpayer, a copy, designated Exhibit E-7. 

8. Letter dated February 24, 1 998, from the Taxpayer to Department of Revenue, a copy designated as Exhibit E-8. 



1675 



NORTH CAROLINA REGISTER 



Aprils, 2000 



14:19 



IN ADDITION 



9. Letter dated February 25, 1998, from the Department of Revenue to Taxpayer, a copy designated as Exhibit E-9. 

10. Letter dated April 6, 1998, from the Department of Revenue to Taxpayer, a copy designated as Exhibit E-10. 

1 1 . Letter dated April 8, 1 998, from the Department of Revenue to Taxpayer, a copy designated as Exhibit E-1 1 . 

12. Letter dated April 15, 1998, from Taxpayer to Department of Revenue, a copy designated as Exhibit E-1 2. 

13. Letter dated April 22, 1998, from the Department of Revenue to the Taxpayer, a copy designated as Exhibit E-13 

14. Letter dated May 11, 1998, from Taxpayer to Department of Revenue, a copy designated as Exhibit E-14. 

15. Refund claim for tax remitted to the Department which was denied, a copy designated as Exhibit E-1 5. 

16. Taxpayer's application for registration with the Department for sales and use tax purposes, a copy designated as 
Exhibit E-1 6. 

17. Sales and use tax report reflecting transactions reported as sales transactions, a copy designated as Exhibit E-1 7. 

18. Taxpayer's 1995 U.S. Income Tax Return for an S Corporation, a copy designated as Exhibit E-18. 

19. Copy of Memorandum dated April 18, 1996, a copy designated as Exhibit E-1 9. 

20. Division's brief for Tax Hearing, a copy designated as Exhibit E-20. 

At the hearing, the Assistant Secretary authorized the Sales and Use Tax Division and Taxpayer to submit any additional 
pertinent information. The following item^ were submitted after the hearing and were part of the record transferred to the Board: 

1 . Memorandum dated October 27, 1 998, from the Division to the Assistant Secretary, a copy designated as Exhibit 
E-21. 

2. Letter dated September 9, 1998, from the Taxpayer's attorney to the Assistant Secretary, a copy designated as 
Exhibit T-1. 

3 . Letter dated October 6, 1 998, from Taxpayer's attorney to the Assistant Secretary, a copy designated as Exhibit T-2. 

4. Letter dated December 1 0, 1 998, from Taxpayer's attorney to the Assistant Secretary, a copy designated as Exhibit 
T-3. 

5. Letter dated August 13, 1998,fromtheAssistantSecretarytoTaxpayer'sattomey,acopydesignatedasExhibitS-l. 

6. Letter dated August 1 4, 1 998, from the Assistant Secretary to Taxpayer's attorney, a copy designated as Exhibit S-2. 

7. Redacted copy of a prior Secretary's Decision relating to water treatment equipment, a copy designated as Exhibit 
S-3. 

8. Redacted copy of a prior Secretary's Decision relating to water treatment equipment, a copy designated as Exhibit 
S-4. 

9. Letter dated September 15,1 998, from Assistant Secretary to Taxpayer's attorney, a copy designated as Exhibit S-5. 

1 0. Letter dated November 3, 1 998, from Assistant Secretary to Taxpayer's attorney, a copy designated as Exhibit S-6. 

FINDINGS OF FACT 

The Board considered the following findings of fact made by the Assistant Secretary in determining its decision: 

1 . Taxpayer provides water treatment equipment to users or consumers. Treatment and conditioning of the Taxpayer's 
customer's water are performed by the equipment itself, not by the Taxpayer. 

2. Water treatment equipment is affixed to the real property. 

3. Taxpayer was registered with the Department for sales and use tax purposes during the audit period and the 
Taxpayer remitted tax to the Department on receipts reported. Taxpayer filed a claim for refiind for the difference 
between tax paid on receipts and tax computed on the cost price of the equipment. 

4. Taxpayer's claim for refund was denied by the Department. 

5. Taxpayer was assessed tax on unreported receipts for water treatment equipment. 

6. The invoice and supporting documentation classifies Taxpayer's activities as a distributor of the United States 
Commercial Water Processor and reflects terms such as "Buyer" and "Seller." 

7. Taxpayer's invoices reflects a typed retail list price for the water treatment system, tax, normal installation, total, 
down payment and the balance. The sales representative, when meeting with a customer, routinely draws a line 
through each charge and writes on the face of the invoice a customary total figure which is less than the balance 
shown. The preprinted tax figure is 6% of the list price, which is the applicable rate. The representative writes 
"Incl." or "Include" on the tax line and "N/C" on the installation line. 

8. The auditor determined the sales price of the water treatment equipment based on the reduction in the total charges. 

CONCLUSIONS OF LAW 

The Board considered the following conclusions of law made by the Assistant Secretary in the final decision: 



14:19 NORTH CAROLINA REGISTER April 3, 2000 1676 



IN ADDITION 



1. Taxpayer's agreement with its customers constitutes a sales contract as opposed to a performance or service 
contract. 

2. Taxpayer is a retailer as defined in G.S. 105-164.3(14). 

3. Taxpayer is "engaged in business" in this State in "selling" "tangible personal property" (water treatment 
equipment) as these terms are defined in G.S. 105-164.3(5), G.S. 105-164.3(15) and G.S. 105-164.3(20), 
respectively. 

4. Taxpayer properly collected and remitted to the Department tax on its retail sales of water treatment equipment. 

5. Taxpayer is liable for collection and payment of the State and local sales or use tax on the gross receipts derived 
from the sale of tangible personal property (water treatment equipment) in accordance with G.S.I 05- 1 64.4 and G.S. 
105-164.6. 

6. The notice of proposed assessment for the period June 1, 1996, through November 30, 1997, was properly issued 
pursuant to G.S. 105-241.1. 

7. The Taxpayer's refund claim for the difference between tax paid to the Department on receipts and tax computed 
on the cost price was properly denied. 

DECISION 

The scope of administrative review for petitions filed with the Tax Review Board is governed by G.S. 1 05-24 1 .2(b2). After 
the Board conducts a hearing, this statute provides in pertinent part: 

(b2). "The Board shall confirm, modify, reverse, reduce or 
increase the assessment or decision of the Secretary." 

On October 8, 1999, the Board conducted a hearing in this matter wherein the Board considered the petition filed by the 
Taxpayer, the Secretary's brief, the record filed in this matter, and the final decision of Assistant Secretary. The Board also considered 
the arguments of counsel presented at the hearing. Based upon the Board's review of this matter, there exist sufficient evidence in 
the record, to confirm the Assistant Secretary's decision as to the assessment of sales and use tax for the period of June 1, 1996, 
through November 30, 1997, against the Taxpayer. 

IT IS THEREFORE ORDERED that the Assistant Secretary's final decision that sustained the assessment of 
additional sales and use tax imposed against the Taxpayer for the period of June 1 , 1 996, through November 30, 1 997 be hereby 
confirmed in every respect. 

Made and entered into this 2"'' day of February, 2000. 

Signature 



Harlan E. Boyles, Chairman 
State Treasurer 



Signature_ 



Jo Anne Sanford, Member 
Chair, Utilities Commission 



Signature_ 



Noel L. Allen, Appointed Member 



7677 NORTH CAROLINA REGISTER April 3, 2000 14:19 



IN ADDITION 



STATE OF NORTH CAROLINA 

COUNTY OF WAKE 
IN THE MATTER OF: 

The Proposed Assessment of Additional 
Sales and Use Tax for the period of June 
1, 1996, through November 30, 1997, by the 
Secretary of Revenue 

vs. 

Hydro Pure of Greensboro, Inc 
Taxpayer 



BEFORE THE 
TAX REVIEW BOARD 



ADMINISTRATIVE DECISION 



Number: 



360 



This matter was heard before the Tax Review Board in the city of Raleigh, on October 8, 1 999, upon Taxpayer's petition 
for administrative review of the Final Decision of the Secretary of Revenue entered on March 10, 1999, sustaining the assessment 
of additional sales and use tax for the period of June 1, 1996, through November 30, 1997. 

Attorney C. B. McLean, Jr., appeared at the hearing on behalf of the Taxpayer. Marilyn R. Mudge, Assistant Attorney 
General, appeared at the hearing on behalf of the Secretary of Revenue. 

Chairman Harlan E. Boyles, State Treasurer presided over the hearing with Jo Anne Sanford, Chair, Utilities Commission 
and duly appointed member, Noel L. Allen, Attorney at Law participating. 

Hydro Pure of Greensboro, Inc. (hereinafter "Taxpayer") appeals from the Final Decision of the Secretary of Revenue 
entered on March 10, 1999, sustaining the proposed assessment of additional sales and use tax. Taxpayer is engaged in the business 
of selling and installing water treatment equipment that treats and conditions all water coming into a residential household water 
system. The Taxpayer was registered with the Department for sales and use tax purposes during the audit period and Taxpayer 
remitted tax to the Department based on its cost of equipment sold. Taxpayer filed a claim for refund for the difference between the 
tax paid on receipts and tax computed on the cost price of the equipment. On March 10 1999, the Secretary of Revenue entered a 
decision sustaining the proposed assessment of additional sales and use tax for the period of June 1, 1996, through November 30, 
1 997. Pursuant to G.S. 1 05-24 1 .2, Taxpayer timely filed notice and petition for administrative review of the Assistant Secretary's final 
decision with the Tax Review Board. 

ISSUE 

The issue to be decided on appeal of this matter is: 

1 . Did the Secretary properly conclude that the Taxpayer is making retail sales of water conditioning equipment, which 

sales are subject to sales tax on the selling price of the equipment? 

EVIDENCE 

The evidence presented at hearing before the Secretary of Revenue and included in the record presented to the Board is as 
follows: 

1 . Fact sheet of field auditor's report and explanation of changes, a copy designated as Exhibit E- 1 . 

2. NoticeofTax Assessment for the period June 1, 1996, through November 30, 1997, dated March 23, 1998, acopy 
designated as Exhibit E-2. 

3. Notice of Tax Assessment for the period July 1997, dated March 22, 1998, a copy designated as Exhibit E-3. 

4. Notice of Tax Assessment for the month of August 1 997, dated April 13, 1998, a copy designated as Exhibit E-4. 

5. Notice of Tax Assessment for the month of December 1 996, dated May 25,1 998, a copy designated as Exhibit E-5. 

6. Information furnished by Taxpayer to Department of Revenue on January 22, 1998, which relates to Taxpayer's 
business, a copy designated Exhibit E-6. 

7. Information furnished by Taxpayer to the Department on Revenue on February 6, 1 998, a copy designated as 
Exhibit E-7. 

8. Letter dated February 6, 1998, fi-om the Department of Revenue to Taxpayer, a copy, designated Exhibit E-8. 



14:19 



NORTH CAROLINA REGISTER 



April 3, 2000 



1678 



IN ADDITION 



9. Letter dated February 24, 1998, from the Taxpayer to Department of Revenue, a copy designated as Exhibit E-9. 

1 0. Letter dated February 25, 1 998, from the Department of Revenue to Taxpayer, a copy designated as Exhibit E-1 0. 

1 \. Letter dated April 8, 1998, from the Department of Revenue to Taxpayer, a copy designated as Exhibit E-1 1. 

1 2. Letter dated April 1 5, 1 998, from Taxpayer to Department of Revenue, a copy designated as Exhibit E-1 2. 

13. Letter dated April 22, 1998, from the Department of Revenue to the Taxpayer, a copy designated as Exhibit E-1 3. 

14. Letter dated May 1 1, 1998, from the Department of Revenue to the Taxpayer, a copy designated as Exhibit E-14. 

15. Refund claim for tax remitted to the Department which was denied, a copy designated as Exhibit E-1 5. 

1 6. Taxpayer's application for registration with the Department for sales and use tax purposes, a copy designated as 
Exhibit E-1 6. 

17. Sales and use tax report reflecting transactions reported as sales transactions, a copy designated as Exhibit E-1 7. 

18. Letter dated July 14, 1998, from the Assistant Secretary for Legal and Financial Services, a copy designated as 
Exhibit E-1 8. 

1 9. Copy of Memorandum dated April 1 8, 1 996, a copy designated as Exhibit E-1 9. 

20. Division's brief for Tax Hearing, a copy designated as Exhibit E-20. 

At the hearing, the Assistant Secretary authorized the Sales and Use Tax Division and Taxpayer to submit any additional 
pertinent information within thirty days of the hearing. The following items were submitted by the Taxpayer and were a part of the 
record transferred to the Board: 

1 . Memorandum dated October 27, 1 998, from the Division to the Assistant Secretary, a copy designated as Exhibit 
E-21. 

2. Letter dated September 9, 1998, from the Taxpayer's attorney to the Assistant Secretary, a copy designated as 
Exhibit T-1. 

3. Letter dated October 6, 1998, from Taxpayer's attorney to the Assistant Secretary, a copy designated as Exhibit T-2. 

4. Letter dated December 1 0, 1 998, from Taxpayer's attorney to the Assistant Secretary, a copy designated as Exhibit 
T-3. 

5. Letter dated August 13, 1998, from the Assistant Secretary to Taxpayer's attorney, a copy designated as Exhibit S-1. 

6. Letter dated August 1 4, 1 998, from the Assistant Secretary to Taxpayer's attorney, a copy designated as Exhibit S-2. 

7. Redacted copy of a prior Secretary's Decision relating to water treatment equipment, a copy designated as Exhibit 
S-3. 

8. Redacted copy of a prior Secretary's Decision relating to water treatment equipment, a copy designated as Exhibit 
S-4. 

9. Letter dated September 15, 1998, from Assistant Secretary to Taxpayer, a copy designated as Exhibit S-5. 
10. Letter dated November 3, 1998, from Assistant Secretary to Taxpayer, a copy designated as Exhibit S-6. 

FINDINGS OF FACT 

The Board considered the following findings of fact made by the Assistant Secretary in determining its decision: 

1 . Taxpayer provides water treatment equipment to users or consumers. Treatment and conditioning of the Taxpayer's 
customer's water are performed by the equipment itself, not by the Taxpayer. 

2. Water freatment equipment is affixed to the real property. 

3. Taxpayer was registered with the Department for sales and use tax purposes during the audit period and the 
Taxpayer remitted tax to the Department on receipts reported. Taxpayer filed a claim for refund for the difference 
between tax paid on receipts and tax computed on the cost price of the equipment. 

4. Taxpayer's claim for refund was denied by the Department. 

5. Taxpayer was assessed tax on unreported receipts for water treatment equipment. 

6. The invoice and supporting documentation classifies Taxpayer's activities as a distributor of the United States 
Commercial Water Processor and reflects terms such as "Buyer" and "Seller." 

7. Taxpayer's invoices reflects a typed list price for the water treatment system, tax, normal installation, total, down 
payment and the balance. The sales representative, when meeting with a customer, routinely draws a line through 
each charge and writes on the face of the invoice a customary total figure which is less than the balance shown. 
The preprinted tax figure is 6% of the list price, which is the applicable rate. The representative writes "Incl." or 
"Include" on the tax line and "N/C" on the installation line. 

8. The auditor determined the sales price of the water treatment equipment based on the reduction in the total charges. 

CONCLUSIONS OF LAW 



1679 NORTH CAROLINA REGISTER April 3, 2000 14:19 



IN ADDITION 



The Board considered the following conclusions of law made by the Assistant Secretary in the final decision: 

1. Taxpayer's agreement with its customers constitutes a sales contract as opposed to a performance or service 
contract. 

2. Taxpayer is a retailer as defined in G.S. 105-164.3(14). 

3. Taxpayer is "engaged in business" in this State in "selling" "tangible personal property" (water treatment 
equipment) as these terms are defined in G.S. 105-164.3(5), G.S. 105-164.3(15) and G.S. 105-164.3(20), 
respectively. 

4. Taxpayer properly collected and remitted to the Department tax on its retail sales of water treatment equipment. 

5. Taxpayer is liable for collection and payment of the State and local sales or use tax on the gross receipts derived 
from the sale of tangible personal property (water treatment equipment) in accordance with G.S. 1 05-1 64.4 and G.S. 
105-164.6. 

6. The notice of proposed assessment for the period March 1, 1995, through May 31,1996, was properly issued 
pursuant to G.S. 105-241.1. 

7. The Taxpayer's refiind claim for the difference between tax paid to the Department on receipts and tax computed 
on the cost price was properly denied. 

DECISION 

The scope of administrative review for petitions filed with the Tax Review Board is governed by G.S. 105-241 .2(b2). After 
the Board conducts a hearing this statute provides in pertinent part: 

(b2). "The Board shall confirm, modify, reverse, reduce or 
increase the assessment or decision of the Secretary." 

On October 8, 1 999, the Board conducted a hearing in this matter wherein the Board considered the petition filed by the 
Taxpayer, the Secretary's brief, the record filed in this matter, the final decision of the Assistant Secretary. The Board also considered 
the arguments of counsel presented at the hearing. Based upon the Board's review of this matter, there exist sufficient evidence in 
the record, to confirm the Assistant Secretary's decision as to the assessment of sales and use tax for the period of June 1 , 1 996, 
through November 30, 1997, against the Taxpayer. 

IT IS THEREFORE ORDERED that the Assistant Secretary's final decision that sustained the assessment of additional 
sales and use tax imposed against the Taxpayer for the period of June 1 , 1996, through November 30, 1 997 be hereby confirmed in 
every respect. 

Made and entered into this 2"'^ day of February, 2000. 

Signature 



Harlan E. Boyles, Chairman 
State Treasurer 



Signature_ 



Jo Anne Sanford, Member 
Chair, Utilities Commission 



Signature_ 



Noel L. Allen, Appointed Member 



I 



14:19 NORTH CAROLINA REGISTER April 3, 2000 1680 



IN ADDITION 



STATE OF NORTH CAROLINA 

COUNTY OF WAKE 
IN THE MATTER OF: 

The Proposed Assessment of Additional 
Sales and Use Tax for the period of 
January 1, 1994, through November 30, 
1996 by the Secretary of Revenue 
vs. 

Jefferson-Pilot Life Insurance Co. 
Taxpayer 



BEFORE THE 
TAX REVIEW BOARD 



ADMINISTRATIVE DECISION 



Number: 



361 



This matter was first heard before the Regular Tax Review Board on Taxpayer's petition for administrative review from the 
Assistant Secretary of Revenue's final decision entered on August 18, 1998, Docket No. 97-590. On November 16, 1998, the Board 
issued Administrative Decision No. 349, remanding the case to the Secretary of Revenue for further consideration. On remand, the 
Secretary entered a Final Decision on March 9, 1 999, referenced as Docket No. 97-590(2), sustaining the proposed assessment. From 
that decision. Taxpayer filed a petition for administrative review with the Board. 

On October 8, 1999, the Board considered the Taxpayer's petition for administrative review in the city of Raleigh, Wake 
County, North Carolina in the office of the State Treasurer. Chairman Harlan E. Boyles, State Treasurer presided over the hearing 
with Jo Anne Sanford, Chair, Utilities Commission and duly appointed member, Noel L. Allen, Attorney at Law participating. C.B. 
McLean, Jr. appeared at the hearing on Taxpayer's behalf. Kay Miller Hobart, Assistant Attorney General appeared at the hearing for 
the Department of Revenue. 

STATEMENT OF FACTS 

The facts of this matter are not in dispute. Taxpayer is an insurance company and paid gross premiums taxes under Article 8B of 
the Revenue Act during the period January 1 , 1 994 through November 30, 1 996. Taxpayer purchased tangible personal property for storage, 
use or consumption from out-of-state retailers who did not collect state or local use tax on the sales price of the property. Taxpayer failed 
to accrue and remit state and local use tax on such purchases. Upon audit, Taxpayer remitted state use tax, but contested the local use tax 
portion. On its in-state purchases. Taxpayer paid both state and local sales tax to its vendors. At issue in this matter is the Taxpayer's liability 
for local use tax for the period of January 1, 1994 through November 30, 1996. 



ISSUE 



The issue to be decided in this matter is as follows: 



1. Did the Secretary properly conclude that insurance companies are granted no specific exemption from sales or use tax 

under the Sales and Use Tax Laws? 

EVIDENCE 

The evidence presented at hearing before the Secretary of Revenue and included in the record presented to the Board is as follows: 



2. 
3. 
4. 



6. 

7. 



Exhibits E-1 through E-10 and T-1 through T^ from the Secretary's final decision. Docket No. 97-590, dated October 

20, 1 997, and incorporated by reference herein. 

Secretary's final decision. Docket No. 97-590, dated October 20, 1997, a copy designated as E-1 1. 

Taxpayer's petition for review before the Tax Review Board dated January 13. 1998, a copy designated as E-12. 

Brief for the Secretary of Revenue before the Tax Review Board, dated August 10, 1 998, a copy designated as Exhibit 

E-13. 

Tax Review Board Decision No. 349, dated November 16, 1998, and letter dated November 16, 1998, from the Tax 

Review Board to the Secretary of Revenue, a copy designated Exhibit E-1 4. 

Ratified Senate Bill 1226, dated August 14, 1998, a copy designated as Exhibit E-15. 

Memorandum dated June 25, 1998, with the Explanation of Senate Bill 1226 from the Legislative Staff to the House 

Finance Committee, a copy designated as Exhibit E-1 6. 



1681 



NORTH CAROLINA REGISTER 



April 3, 2000 



14:19 



IN ADDITION 



8. Letter dated February 8, 1 999, fmm the Assistant Secretary to Taxpayer's representative, a copy designated as Exhibit E- 
17. 

9. Brief for the Tax Hearing on Remand submitted by the Division, a copy designated as Exhibit E- 1 8. 

FINDINGS OF FACT 

The Board reconsidered the Findings of Fact as stated in the Assistant Secretary's Final Decision No. 97-590, dated October 20, 
1997, as incorporated by reference in the Assistant Secretary's Final Decision, Docket No.97-590, entered March 9, 1999. 

CONCLUSIONS OF LAW 

The Board considered the following conclusions of law made by the Assistant Secretary in the final decision: 

1. The Conclusions of Law in the Secretajys Final Decision No. 97-590, dated October 20, 1997, and incorporated by 
reference herein. 

2. There was no specific exeirption fi^om sales or use tax for insurance companies contained in Article 5 of the North 
Carolina Revenue Act, Sales and Use Tax Act, either prior to or after the amendment of N.C.G.S. 1 05-228. 1 by Senate 
Bill 1226. 

3. N.C.G.S. 105-228.10 is not contained within Article 5 of the North Carolina Revenue Act, the Sales and Use Tax Act 

4. N.C.G.S. 105-228.10 is contained within Article 8B of the North CaroUna Revenue Act, Taxes upon Insurance 
Companies. 

5. Insurance companies are granted no specific exemption irom sales or use tax imder Article 5 of the North Carolina 
Revenue Act, the Sales and Use Tax Act. 

6. Insurance companies are therefore granted no specific exemption fi^om sales or use tax under the Sales and Use Tax Law. 

DECISION 

The scope of administrative review for petitions filed with the Tax Review Board is governed by G.S. 1 05-241 .2(b2). After the 
Board conducts a hearing, this statute provides in pertinent part: "The Board shall confirm, modify, reverse, reduce or increase the assessment 
or decision of the Secretary." 

By Administrative Decision No. 349, entered on November 16, 1998, this Board determined that the Assistant Secretary did not 
properly conclude that "[i]nsurance companies are granted no specific exemption Irom sales or use tax under the Sales and Use Tax Law." 
Upon making this determination, the Board entered its order remanding this matter to the Secretary of Revenue for fiirther consideration. 
On March 9, 1999, the Assistant Secretary entered a Final Decision, sustaining the proposed assessment of additional sales and use tax for 
the period of January 1, 1994 through November 30, 1996. From that decision, Taxpayer filed a petition for administrative review with this 
Board. On October 8, 1 999, a hearing on Taxpayer's petition was conducted and this Board considered the arguments of counsel and 
documents filed that pertained to the Assistant Secretary's decision that sustained the proposed assessment of additional sales and use taxes 
for the period at issue. 

The statute at issue is G.S. 1 05-228. 1 0, which is part of Chapter 1 05, of the Revenue Laws of North Carolina and the sales and use 
tax articles are part of Chapter 105 of the General Statutes. This statute stated, prior to the 1998 amendment, effective August 14, 1998, that 
"No county, city, or town shall be allowed to impose any additional tax, license, or fee, other than ad valorem taxes, upon any insurance 
company or association paying the fees and taxes levied in this Article." 

At the hearing. Taxpayer contended that the statute means exactly what it says, that it is clear, direct, and unambiguous. The 
Taxpayer fiirther contended that there is no statute that supports the Department's argument that an exenption provision must be contained 
in the same article as the tax provisions it pertains to in order for the exemption to be applicable. 

The Board having conducted a hearing in this matter and having considered the petition, the brief, the record and the final decision 
of Assistant Secretary, concludes that the Assistant Secretary's decision sustaining the proposed assessment of additional sales and use tax 
for the period January 1 , 1 994 through November 30, 1 996 should be reversed. In the Board's opinion, G.S. 1 05-228. 1 appears to be more 
of a prohibition against local imposition of additional taxes rather than an "exemption" fi"om a tax. Although the taxes in dispute are collected 
by the state, the counties, cities and towns impose the taxes. Ordinarily, exemptions and exclusions are separately denominated as such. See, 
for example, G.S. 105-228(g) and G.S. 105-228. 5(c). As a limitation on local governments more than an exclusion or exemption, any 
ambiguity would more likely be construed in favor of the Taxpayer. Since the Board does not find as compelling the argument that an 
exemption provision must be contained within the same article, as the tax provision it pertains to, it therefore determines that the Assistant 
Secretary's decision should be reversed. 



14:19 NORTH CAROLINA REGISTER April 3, 2000 1682 



IN ADDITION 



IT IS THEREFORE ORDERED that the Assistant Secretary's final decision, entered on March 9, 1 999, sustaining the proposed 
assessment of additional sales and use tax for the period of January 1, 1994 through November 30, 1996 be reversed. 



Made and entered into this 8th day of February 2000. 

Signature 



Harlan E. Boyles, Chairman 
State Treasurer 



Signature_ 



Jo Anne Sanford, Member 
Chair, Utilities Commission 



Signature_ 



Noel L. Allen, Appointed Member 



1683 NORTH CAROLINA REGISTER April 3, 2000 14:19 



RULE-MAKING PROCEEDINGS 



A Notice of Rule-making Proceedings is a statement of subject matter of the agency 's proposed rule making. The agency must publish 
a notice of the subject matter for public comment at least 60 days prior to publishing the proposed text of a rule. Publication of a 
temporary rule serves as a Notice of Rule-making Proceedings and can be found in the Register under the section heading of 
Temporary Rules. A Rule-making Agenda published by an agency serves as Rule-making Proceedings and can be found in the 
Register under the section heading of Rule-making Agendas. Statutory reference: G.S. 150B-21.2. 



TITLE 2 - DEPARTMENT OF AGRICULTURE AND 
CONSUMER SERVICES 

CHAPTER 34 - STRUCTURAL PEST CONTROL 
DIVISION 

Tl Jotice of Rule-making Proceedings is hereby given by the North 
1 V Carolina Structural Pest Control Committee in accordance 
with G.S. 1508-21. 2. The agency shall subsequently publish in the 
Resister the text of the rule(s) it proposes to adopt as a result of this 
notice of rule-making proceedings and any comments received on 
this notice. 

Citation to Existing Rules Affected by this Rule-Making: 2 

NCA C 34 . 0505-. 0506 - Other rules may be proposed in the course 
of the rule-making process. 

Authority for the rule-making: G.S. 106-65.29 

Statement of the Subject Matter: Establish standards for termite 
prevention treatment of buildings under construction. Proposed 
rule changes would permit the use of topically applied wood 
treatment termiticides in lieu of conventional treatment methods. 

Reason for Proposed Action: This rule-making proceeding was 
initiated as a result of a petition submitted by Ron Schwalb, Nisus 
Corporation. 

Comment Procedures: Written comments may he submitted to 
Carl Falco, Secretary, North Carolina Structural Pest Control 
Committee, PO Box 27647, Raleigh. NC 27611. 



Proposed changes would require negative brucellosis and 
tuberculosis tests prior to importation. 

Reason for Proposed Action: Brucellosis and tuberculosis are 
known to exist in goat and sheep herds in other states. The 
proposed change is necessary to prevent the introduction and 
spread of these diseases in North Carolina. 

Comment Procedures: Written comments may be submitted to 
Davids. McLeod, Secretary, North Carolina Board of Agriculture, 
PO Box 27647, Raleigh, NC 27611. 



TITLE 10 - DEPARTMENT OF HEALTH AND HUMAN 
SERVICES 

CHAPTER 42 - INDIVIDUAL AND FAMILY SUPPORT 

TV Tbtice of Rule-making Proceedings is hereby given by the North 
1 V Carolina Medical Care Commission in accordance with G.S. 
150B-21.2. The agency shall subsequently publish in the Resister 
the text of the rule(s) it proposes to adopt as a result of this notice 
of rule-making proceedings and any comments received on this 
notice. 

Citation to Existing Rules Affected by this Rule-Maldng: 10 

NCAC 42B; 42C; 42C .2401; 42D - Other rules may be proposed 
in the course of the rule-making process. 

Authority for the rule-making: G.S 131D-2; I31D-4.5; 131D- 
4.6; 131D-7; 143B-165; S.L. 99-334 



******************** 



CHAPTER 52 - VETERINARY DIVISION 



Statement of the Subj ect Matter: The subject matter will include 
admission criteria for adult care homes but shall not be limited to 
this matter. 



'\ JOtice of Rule-making Proceedings is hereby given by the North 
1 V Carolina Board of Agriculture in accordance with G.S. 
150B-21.2. The agency shall subsequently publish in the Resister 
the text of the rule(s) it proposes to adopt as a result of this notice 
of rule-making proceedings and any comments received on this 
notice. 

Citation to Existing Rules Affected by this Rule-Maldng: 2 

NCAC 52B .0208:0209 - Other rules may be proposed in the 
course of the rule-making process. 

Authority for the rule-makmg: G.S 106-307.5; 106-396 

Statement of the Subject Matter: These rules establish 
requirements for importation of goats and sheep into the state. 



Reason for Proposed Action: On March 9, 2000 the North 
Carolina Medical Care Commission adopted a resolution to give 
public notice of proposed rule making to include changes to the rule 
establishing admissions criteria for adult care homes. 

Comment Procedures: Written comments concerning the rule- 
making action must be submitted to Jackie Sheppard, Rule-making 
Coordinator, Division of Facility Services, 2701 Mail Service 
Center, Raleigh, NC 27699-2701. 

******************** 

CHAPTER 46 - DAY CARE RULES 

Ti Jotice of Rule-making Proceedings is hereby givenby the Social 
1 y Services Commission in accordance with G.S. 150B-21.2. The 



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April 3, 2006 



1684 



RULE-MAKING PROCEEDINGS 



agency shall subsequently publish in the Register the text of the 
nile(s) it proposes to adopt as a result of this notice ofrule-maldng 
proceedings and any comments received on this notice. 

Citation to Existing Rules Affected by this Rule-Making: 10 

NCAC 46A; 46C; 46D; 46E; 46F; 46G; 46H - Other rules may be 
proposed in the course of the rule-making process. 

Authority for the rule-maldng: G.S. 143B-153 

Statement of the Subject Matter: These rules pertain to the 
purchase of subsidized child care for needy families. 

Reason for Proposed Action: SL 99-0237 made changes to the 
payment policies of the state's subsidized child care program. The 
rules pertaining to the subsidized child care program will be 
reviewed and revised, as needed, to reflect this change and other 
areas that may need to be updated. 

Comment Procedures: Anyone wishing to comment should contact 
Shamese Ransome, APA Coordinator, Social Services Commission, 
NC Division of Social Services, 325 N. Salisbury Street, 2401 Mail 
Service Center, Raleigh, NC 27699-2401, phone 919/733-3055. 
Written comments will be received through June 3, 2000. 



TITLE 13 - DEPARTMENT OF LABOR 

CHAPTER 12 - WAGE AND HOUR 

TV JOtice of Rule-making Proceedings is hereby given by the NC 
1 1 Department of Labor in accordance with G.S. 150B-21.2. The 
agency shall subsequently publish in the Resister the text of the 
rule(s) it proposes to adopt as a result of this notice ofrule-maldng 
proceedings and any comments received on this notice. 

Citation to Existing Rules Affected by tliis Rule-Maldng: 13 

NCAC 12.0102 - .0103, .0202, .0301 - .0310, .0401 - .0406, .0501, 
.0601- .0602, .0604, .0701 - .0703, .0801 - .0807. Other rules may 
be proposed in the course of the rule-making process. 

Authority for the rule-maldng: G.S 95-25.3, 95-25.5, 95-25.15, 
95-25.19 

Statement of the Subject Matter: Rules regarding the 
enforcement of the Wage and Hour Act; youth employment, 
including detrimental occupations for youth under age 18; and 
records to be maintained by employers. 

Reason for Proposed Action: To amend and propose Wage and 
Hour rules to embody enforcement positions fo the Department of 
Labor and to help employers more fiilly understand their 
responsibilities under the Wage and Hour Act. To amend and 
propose rules under the Wage and Hour Act regarding youth the 
employment to clarify and add detrimental occupations for youth in 
order to provide for their health and well-being and to help youth, 
parents and employers more fiilly understand their responsibilities. 



As part of the process of revising these rules, the Department may 
propose a rearrangement of the rule numbers in certain sections to 
clarify the rules. 

Comment Procedures: The purpose of this announcement is to 
encourage all interested and potentially affected persons or parties 
at make known their views with regard to this proposed rule- 
making. Written comments, data, or other information relevant to 
this proposal should be submitted to Ann B. Wall, Legal Specialist, 
Department of Labor, Legal Affair Division, 4 West Edenton Street, 
Raleigh, NC 27601-1092. Fax transmittals may be directed to (919) 
715-5629. 

******************** 

CHAPTER 17 - PRIVATE PERSONNEL SERVICES 

Ti jotice of Rule-making Proceedings is hereby given by the NC 
1 1 Department of Labor in accordance with G.S. 150B-21.2. The 
agency shall subsequently publish in the Register the text of the 
rule(s) it proposes to adopt as a result of this notice of rule-making 
proceedings and any comments received on this notice. 

Citation to Existing Rules Affected by this Rule-Making: 13 

NCAC 17 .0101 -.0111; 18.0101 -.0110 - Other rules may be 
proposed in the course of the rule-making process. 

Authority for the rule-makmg: G.S 95-47.3A, 95-47.8, 95-47.9, 
95-47.21, 95-47.22, 95-47.23, 95-47.24, 95.47.25, 95-47.29, 95- 
47.30. 

Statement of the Subject Matter: Rules regarding the 
enforcement of the regulation of Private Personnel Services and the 
regulation of Job Listing Services. Other rules may be proposed in 
the course of the rule-making process. 

Reason for Proposed Action: To amend and propose rules 
regarding the enforcement of the regulation of Private Personnel 
Services and the regulation of Job Listing Services in order to 
embody enforcement positions of the Department of Labor and to 
clarify the rules to help applicants, employees, employers and 
services morefitlly understand their responsibilities. 

Comment Procedures: The purpose of this announcement is to 
encourage all interested and potentially affected person or parties 
to make known their views with regard to this proposed rule- 
making. Written comments, data, or other information relevant to 
this proposal should be submitted to Ann B. Wall, Legal Specialist, 
Department of Labor, Legal Affairs Division, 4 West Edenton Street, 
Raleigh, NC 27601-1092. Fax transmittals may be directed to 
919/715-5629. 

******************** 

Ti lOtice of Rule-making Proceedings is hereby given by the NC 
1 V Department of Labor in accordance with G.S. 150B-21.2. The 
agency shall subsequently publish in the Resister the text of the 



1685 



NORTH CAROLINA REGISTER 



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14:19 



RULE-MAKING PROCEEDINGS 



rule(s) it proposes to adopt as a result of this notice of rule-making 
proceedings and any comments received on this notice. 

Citation to Existing Rules Affected by this Rule-Making: None - 
Other rules may be proposed in the course of the rule-making 
process. 

Authority for the rule-making: G.S. 95-234 

Statement of the Subject Matter: Rules regarding the 
enforcement of controlled substances examination regulation. 

Reason for Proposed Action: To propose rules regarding the 
enforcement of controlled substances examination regulation in 
order to embody enforcement positions of the Department of Labor 
and to clarify the rules to help applicants, employees, employers and 
laboratories more fully understand their responsibilities. 

Comment Procedures: The purpose of this announcement is to 
encourage all interested and potentially affected persons or parties 
to make known their views with regard to this proposed rule- 
making. Written comments, data, or other information relevant to 
this proposal should be submitted to Ann B. Wall, Legal Specialist, 
Department of Labor, Legal Affair Division, 4 West Edenton Street, 
Raleigh, NC 2 7601-1092. Fax ti-ansmittals may be directed to (91 9) 
715-5629. 



TITLE ISA - DEPARTMENT OF ENVmONMENT AND 
NATURAL RESOURCES 



Waters (HQW) classification. The waters were sampled for this 
purpose and meet the criteria for HQW, which is defined in 15A 
NCAC2B .0101(e)(5) as waters which are rated as excellent based 
on Division monitoring, native and special native trout waters (and 
their tributaries) designated by the Wildlife Resources Commission, 
PNAs designated by the Marine Fisheries Commission and other 
fiinctional nursery areas designated by the Marine Fisheries 
Commission, all water supply water sheds which are either classified 
as WS-I or WS-11 or those waters for which a formal petition for 
reclassification as WS-1 or WS-11 has been received fi-om the 
appropriate local government and accepted by the Division of 
Water Quality and all Class SA waters. Therefore, Mill Creek and 
its tributaries are proposed to be reclassified fi-om WS-Ill and WS- 
111 B to WS-lUHQWand WS-lII B HQW, respectively. New and 
expanding wastewater dischargers to High Quality Waters have 
additional treatment requirements. Projects which require a 
Sedimentation and Erosion Control Plan and which drain to and 
are within one mile of HQWs will have more stringent land use 
development criteria as defined in 15ANCAC2H .1006. Underthe 
low density development option, 1 dwelling unit per acre or a 12% 
built upon area would be allowed for projects which require a 
Sedimentation and Erosion Control Plan. 

Comment Procedures: The purpose of this announcement is to 
encourage those interested in this proposal to provide written 
comments. Written comments may be submitted to Jeff Manning, 
DWQ Planning Branch, 1617 Mail Service Center, Raleigh, NC 
27699-161 7 or by callingJeffManning at (919) 733-5083 ext. 579. 

******************** 



CHAPTER 2 - ENVIRONMENTAL MANAGEMENT 



CHAPTER 2 - ENVIRONMENTAL MANAGEMENT 



TV JOtice of Rule-making Proceedings is hereby given by the 
1 V Environmental Management Commission in accordance with 
G.S. 150B-21.2. The agency shall subsequently publish in the 
Resjster the text of the rule(s) tt proposes to adopt as a result of this 
notice of rule-making proceedings and any comments received on 
this notice. 



Ti T&ft'ce of Rule-making Proceedings is hereby given by the 
1 y Environmental Management Commission in accordance with 
G.S. 150B-21.2. The agency shall subsequently publish in the 
Resjster the text of the rule(s) it proposes to adopt as a result of this 
notice of rule-making proceedings and any comments received on 
this notice. 



Citation to Existing Rules Affected by this Rule-Making: ISA 

NCAC2B .0311 - Other rules nuxy be proposed in the course of the 
rule-making process. 

Authority for the rule-making: G.S. 143-214.1; 143-215.1; 143- 
215.3(a)(1) 

Statement of the Subject Matter: The Environmental 
Management Commission (EMC) is proposing to reclassify Mill 
Creek (in Moore County) and its tributaries to include the 
supplemental HQW (High Quality Waters) classification. Class 
WS-lIl and Class WS-Ill B are the existing classifications of the 
waterbodies proposed for reclassification. 

Reason for Proposed Action: Several residents along Mill Creek 
in Moore County have requested that Mill Creek (Cape Fear River 
Basin) be reclassified to include the supplemental High Quality 



Citation to Existing Rules Affected by this Rule-Making: 15A 

NCA C 2B .0313 - Other rules may be proposed in the course of the 
rule-making process. 

Authority for the rule-making: G.S 143-214.1; 143-215.1; 143- 
215.3(a)(1) 

Statement of the Subject Matter: The Environmental 
Management Commission is proposing to reclassify Fullers Creek 
(in Caswell County) from Class Water Supply-11 to Class Water 
Supply-lII. 

Reason for Proposed Action: The Town of Yanceyville has 
requested that Fullers Creek Water Supply Watershed in Caswell 
County be reclassified from WS-11 Classification to WS-llI 
Classification. NC Public Water Supply has confirmed that the 
Town of Yanceyville no longer uses the reservoir on Fullers Creek 
as their primary water supply intake. The Public Water Supply 



14:19 



NORTH CAROLINA REGISTER 



Aprils, 2000 



1686 



RULE-MAKING PROCEEDINGS 



office in the region (Winston-Salem) would prefer that the Fuller 
Creek water supply classification be retained fi)r use as an 
emergency water supply intake and do not object to Fullers Creek 
watershed being reclassified to WS-III. Reclassification would 
change the permitted density of development in the Critical Area 
(1/2 mile and draining to the intake) to 1 dwelling unit per acre or 
12% built upon areafijr the low density development option. For 
the rest of the watershed the permitted development density under 
low density option would be 1 dwelling unit per 0.5 acre or 24% 
built upon area. Under the high density development option, the 
reclassification would allow 1 2-30% built upon area in the Critical 
Area and also allow 24-50% built upon area in the rest of the 
watershed. Domestic and non-process industrial wastewater 
discharges would not be allowed in the Critical Area, but would be 
allowed in the rest of the watershed. 

Comment Procedures: The purpose of this announcement is to 
encourage those interested in this proposal to provide written 
comments. Written comments may be submitted to Jeff Manning, 
DWQ Planning Branch, 1617 Mail Service Center, Raleigh, NC 
27699-161 7 or by calling Jeff Manning at (919) 733-5083 ext. 579. 

•kit-kie-k'itit'kieicie-k-kitie-kic-k-kie 

CHAPTER 2 - ENVIRONMENTAL MANAGEMENT 



the river intake would be reclassified to WS-IVCA (Critical Area) 
NSW. However, a possibility still exists that the intake will be 
positioned upstream of the currently proposed intake location. This 
second alternative would not include Richland Creek (or the land 
area draining to Richland Creek) in the Protected Area of the 
watershed, and would greatly reduce the land area affected by the 
reclassification. If reclassified, additional regulations will be 
required of the local governments with jurisdiction in the area. Low 
Density and High Density development options are available. 
Under Low Density development, one dwelling unit per 0.5 acre or 
24% built upon area and 30 foot buffers are permitted. Under High 
Density development, 24-70%, built upon area is allowed and 100 
foot buffers are required. The High Density option also requires the 
control of runoff from the first 1" of rainfall by engineered 
stormwater controls. Three dwelling units per acre or 36% built 
upon area are options under Low or High Density outside of the 
designated Critical A rea if there is no curb and gutter street system 
used. Within the designated Critical Area of the water supply, new 
industrial wastewater dischargers will require additional treatment 

Comment Procedures: The purpose of this announcement is to 
encourage those interested in this proposal to provide written 
comments. Written comments may be submitted to Jeff Manning, 
DWQ Planning Branch, 1617 Mail Service Center, Raleigh, NC 
27699-1617 or by calling JeffManningat (919) 733-5083 ext 579. 



TV 'ptice of Rule-making Proceedings is hereby given by the 
1 V Environmental Management Commission in accordance with 
G.S. 150B-21.2. The agency shall subsequently publish in the 
Resister the text of the rule(s) it proposes to adopt as a result of this 
notice of rule-making proceedings and any comments received on 
this notice. 

Citation to Existing Rules Affected by this Rule-Making: 15A 

NCAC 2B .0315 - Other rules may be proposed in the course of the 
rule-making process. 



******************** 

CHAPTER 2 - ENVmONMENTAL MANAGEMENT 

TV lOtice of Rule-making Proceedings is hereby given by the 
1 V Environmental Management Commission in accordance with 
G.S. 150B-21.2. The agency shall subsequently publish in the 
Resister the text of the rule(s) it proposes to adopt as a result of this 
notice of rule-making proceedings and any comments received on 
this notice. 



Authority for the rule-making: G.S. 143-214.1; 143-215.1; 143- 
215.3(a)(1) 

Statement of the Subject Matter: The Environmental 
Management Commission is proposing to reclassify a segment of 
the Neuse River below Falls Lake dam from Class C NSW to Water 
Supply-TV NSW and Water Supply-IV CA (Critical Area) NSW. 

Reason for Proposed Action: The Town of Wake Forest has 
requested that a segment of the Neuse River in Wake County (Neuse 
River Basin) be reclassified to WS-IV as a water supply for Wake 
Forest The river segment to be reclassified begins immediately 
downstream of the Fall's Lake Dam and, as is currently proposed, 
would extend to a point no Juriher downstream than the US-1 
bridge (Capitol Boulevard in Raleigh at the Burlington Mill Plant). 
This segment of the river is currently Class C NSW, and includes the 
tributary named Richland Creek which originates near the Town of 
Youngsville. Under the current proposal, the land area that is 
within 10 miles and draining to the intake (Protected Area) would 
be reclassified to WS-IV NSW and the area 0. 5 mile and draining to 



Citation to Existing Rules Aifected by this Rule-Making: I5A 

NCA C2B .0315 - Other rules may be proposed in the course of the 
rule-making process. 

Authority for the rule-making: G.S. 143-214.1; 143-215.1; 143- 
215.3(a)(1) 

Statement of the Subject Matter: The Environmental 
Management Commission is proposing to reclassijy Fantasy Lake 
(in Wake County) from Class Water Supply-II NSW to Class Water 
Supply-U CA (Critical Area) NSW. 

Reason for Proposed Action: The Town of Rolesville and Mr. 
Doye Sherrill (lake's owner) have jointly requested that Fantasy 
Lake near Rolesville in Wake County be reclassified to add a 
Critical Area (CA) to the existing WS-II NSW classification. 
Fantasy Lake, located within the Little River watershed is a quarry, 
abandoned for mining purposes when it filled with water. The sole 
source of water, other than rainfall, is believed to be groundwater. 
The quarry is on a ridge line and has no observable surface water 



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NORTH CAROLINA REGISTER 



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14:19 



RULE-MAKING PROCEEDINGS 



flowing into it. Overland drainage is minimal, and the land around 
the lake is mainly undeveloped. Reclassification will essentially 
allow a water supply intake fijr the Town ofRolesville to be placed 
in the lake. 

Comment Procedures: The purpose of this announcement is to 
encourage those interested in this proposal to provide written 
comments. Written comments may be submitted to Jeff Manning, 
DWQ Planning Branch, 1617 Mail Service Center, Raleigh, NC 
27699-161 7 or by calling Jeff Manning at (919) 733-5083 ext. 579. 

******************** 

CHAPTER 18 - ENVIRONMENTAL HEALTH 

Ty Totice of Rule-making Proceedings is hereby given by 
1 \ DENR/Commission for Health Services in accordance with 
G.S. 150B-21.2. The agency shall subsequently publish in the 
Register the text of the rule(s) it proposes to adopt as a result of this 
notice of rule-making proceedings and any comments received on 
this notice. 

Citation to Existing Rules Affected by this Rule-Making: ISA 

NCAC 18C . 1211 - Other rules may be proposed in the course of 
the rule-making process. 

Authority for the rule-making: G.S 130A-315; 130A-320 

Statement of the Subject Matter: The Commission for Health 
Services is considering repeal or amendment of the Rule 15A NCA C 
18C . 1211 regarding siting of ground absorption sewage disposal 
systems in watersheds of Class I or Class II water supply reservoirs. 

Reason for Proposed Action: Rule 15A NCAC 18C .1211 was 
promulgated prior to the development of: (1) the On-Site 
Wastewater General Statutes and Rules; (2) the Water Supply 
Watershed Protection Rules requiring local governments to adopt 
ordinances protecting water supply watersheds; and (3) the Source 
Water Assessment and Protection Program. The Rule will be 
changed to make it more consistent with these other rules and 



programs. To determine whether repeal or amendment is 
appropriate, DENR is studying the Rule and inviting written 
comments regarding how the rule is currently used to protect 
drinking water sources. 

Comment Procedures: Written comments may be submitted to the 
Division of Environmental Health, Public Water Supply Section, 
Attention: Robert W. Midgette, 1 634 Mail Service Center, Raleigh, 
NC 27699-1634. 



TITLE 21- OCCUPATIONAL LICENSING BOARDS 

CHAPTER 14 - COSMETIC ART EXAMINERS 

Tl JOtice of Rule-making Proceedings is hereby given by the NC 
1 y State Board of Cosmetic Art Examiners in accordance with 
G.S. 150B-21.2. The agency shall subsequently publish in the 
Register the text of the rule(s) it proposes to adopt as a result of this 
notice of rule-making proceedings and any comments received on 
this notice. 

Citation to Existing Rules Affected by this Rule-Making: 21 

NCAC 141.0401 - Other rules may be proposed in the course of the 
rule-making process. 

Authority for the rule-making: G.S. 88B-4 

Statement of the Subject Matter: Qualifications for convicted 
felons applying for a license. 

Reason for Proposed Action: To update the curriculum for all 
schools. 

Comment Procedures: Written comments concerning this rule- 
making action must be submitted to Dee Williams, Rule-Making 
Coordinator, NC State Board of Cosmetic Art Examiners, 1201-1 10 
Front St., Raleigh. NC 27609. 



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1688 



PROPOSED RULES 



This Section contains the text of proposed rules. A t least 60 days prior to the publication of text, the agency published a Notice of Rule- 
making Proceedings. The agency must accept comments on the proposed rule for at least 30 days from the publication date, or until 
the public hearing or a later date if specified in the notice by the agency. The required comment period is 60 days for a rule that has 
a substantial economic impact of at least five million dollars ($5,000,000). Statutory reference: G.S. 150B-21.2. 



TITLE 12 - DEPARTMENT OF JUSTICE 

Notice is hereby given in accordance with G.S. 150B-21.2 that 
the NC Criminal Justice Education & Training Standards 
Commission intends to amend the rule cited as 12 NCAC 9A . 0103. 
Notice of Rule-making Proceedings was published in the Register 
on December 23, 1999. 

Proposed Effective Date: April 1, 2001 

A Public Hearing will be conducted at 10:00 am on May 25, 2000 
at Room G-22, Old Education Building, 114 West Edenton Street, 
Raleigh, NC. 

Reason for Proposed Action: The North Carolina CriminalJustice 
Education and Training Standards Commission has authorized 
rule-making authority to amend the definition of "Class B 
Misdemeanor" to comply with the Third Edition of the Class B. 
Misdemeanor Manual as published by the North Carolina 
Department of Justice. 

Comment Procedures: Written comments should be directed to 
Elizabeth L Thompson, CriminalJustice Standards Division, Room 
G-27, Old Education Building, 114 West Edenton Street, PO 
Drawer 149, Raleigh, North Carolina 27602-0149. Comments will 
be accepted through May 25, 2000. 



State 



Fiscal Impact 
Local Sub. 



None 
• 



CHAPTER 9 - CRIMINAL JUSTICE EDUCATION 
AND TRAINING STANDARDS 

SUBCHAPTER 9A - CRIMINAL JUSTICE EDUCATION 
AND TRAINING STANDARDS COMMISSION 

SECTION .0100 - COMMISSION ORGAIVIZATION AND 
PROCEDURES 

Note: Text in bold print represents rule changes with an 
effective date of August 1, 2000 approved by Rules Review 
Commission September 1999 

.0103 DEFINITIONS 

The following definitions apply throughout this Chapter, except 
as modified in 12 NCAC 9A .0107 for the purpose of the 
Commission's rule-making and administrative hearing procedures: 

(1) "Agency" or "Criminal Justice Agency" means those 
state and local agencies identified in G.S. 1 7C-2(b). 

(2) "Alcohol Law Enforcement Agent" means a law 
enforcement officer appointed by the Secretary of Crime 



Control and Public Safety as authorized by G.S. 
18B-500. 

(3) "Commission" means the North Carolina Criminal 
Justice Education and Training Standards Commission. 

(4) "Commission of an offense" means a finding by the 
North Carolina Criminal Justice Education and Training 
Standards Commission or an administrative body that a 
person performed the acts necessary to satisfy the 
elements of a specified criminal offense. 

(5) "Convicted" or "Conviction" means and includes, for 
purposes of this Chapter, the entry of: 

(a) a plea of guilty; 

(b) a verdict or finding of guilt by a jury, judge, 
magistrate, or other duly constituted, estabUshed, 
and recognized adjudicating body, tribunal, or 
official, either civilian or military, or 

(c) a plea of no contest, nolo contendere, or the 
equivalent. 

(6) "Correctional Officer" means any employee of the North 
Carolina Department of Correction who is responsible 
for the custody or treatment of inmates. 

(7) "Criminal Justice Officer(s)" means those officers 
identified in G.S. 1 7C-2(c) and fiirther includes probation 
and parole intake officers; probation/parole 
officers-surveillance; probation/parole intensive officers; 
and, state parole case analysts. 

(8) "Criminal Justice System" means the whole of the State 
and local criminal justice agencies described in Item (1) 
of this Rule. 

(9) "Criminal Justice Training Points" means points eamed 
toward the Criminal Justice Officers' Professional 
Certificate Program by successful completion of 
commission-approved criminal justice training courses. 
Twenty classroom hours of commission-approved 
criminal justice training equals one criminal justice 
training point. 

( 1 0) "Department Head" means the chief administrator of any 
criminal justice agency and specifically includes any 
chief of police or agency director. "Department Head" 
also includes a designee formally appointed in writing by 
the Department head. 

(11) "Director" means the Director of the Criminal Justice 
Standards Division of the North Carolina Department of 
Justice. 

(12) "Educational Points" means points eamed toward the 
Professional Certificate Programs for studies 
satisfactorily completed for semester hour or quarter hour 
credit at an accredited institution of higher education. 
Each semester hour of college credit equals one 
educational point and each quarter hour of college credit 
equals two-thirds of an educational point. 

(13) "Enrolled" means that an individual is currendy actively 



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PROPOSED RULES 



(14) 



participating in an on-going formal presentation of a 
commission-accredited basic training course which has 
not been concluded on the day probationary certification 
expires. The term "currently actively participating" as 
used in this definition means: 

(a) for law enforcement officers, that the oflRcer is 
then attending an approved course presentation 
averaging a minimum of twelve hours of 
instruction each week; and 

(b) for Youth Services and Department of Correction 
persormel, that the officer is then attending the last 
or final phase of the approved training course 
necessary for fully satisfying the total course 
completion requirements. 

"High School" means a s cho o l a ccr edi t ed as a h i gh 




state in whic i 



loca t e d ; o r 
al ac cr edi t in g body; or 
t he s t a t e in which t he 
sc hool is l oc a t ed, graduation from a high 
school that meets the compulsory attendance 
requirements in the jurisdiction in which the 
school is located. 

(15) "In-Service Training" means any and all training 
prescribed in Subchapter 9E Rule .0102 which must be 
satisfactorily completed by all certified law enforcement 
officers during each full calendar year of certification. 

( 1 6) "Lateral Transfer" means the employment of a criminal 
justice officer, at any rank, by a criminal justice agency, 
based upon the officer's special qualifications or 
experience, without following the usual selection process 
established by the agency for basic officer positions. 

(17) "Law Enforcement Code of Ethics" means that code 
adopted by the Commission on September 19, 1973, 
which reads: 

As a law enforcement officer, my fiindamental duty is to serve the 
community; to safeguard lives and property; to protect the innocent 
against deception, the weak against oppression or intimidation, and 
the peacefiil against violence or disorder; and to respect the 
constitutional rights of all to liberty, equality, and justice. 
1 will keep my private life unsullied as an example to all, and will 
behave in a manner that does not bring discredit to me or to my 
agency. 1 will maintain courageous calm in the face of danger, 
scorn, or ridicule; develop self-restraint; and be constantly mindful 
of the welfare of others. Honest in thought and deed both in my 
personal and official life, 1 will be exemplary in obeying the law and 
the regulations of my department Whatever 1 see or hear of a 
confidential nature or that is confided to me in my official capacity 
will be kept ever secret unless revelation is necessary in the 
performance of my duty. 

1 wall never act officiously or permit personal feelings, prejudices, 
political beliefs, aspirations, animosities or friendships to influence 
my decisions. With no compromise for crime and with relentless 
prosecution of criminals, 1 will enforce the law courteously and 
appropriately without fear or favor, malice or ill will, never 
employing unnecessary force or violence and never accepting 
gratuities. 



1 recognize the badge of my office as a symbol of public faith, and 
1 accept it as a public trust to be held so long as 1 am true to the 
ethics of the police service. 1 will never engage in acts or corruption 
or bribery, nor will I condone such acts by other police officers. I 
will cooperate with all legally authorized agencies and their 
representatives in the pursuit of justice. 

I know that I alone am responsible for my own standard of 
professional performance and will take every reasonable opportunity 
to enhance and improve my level of knowledge and competence. 
1 will constantly strive to achieve these objectives and ideals, 
dedicating myself before God to my chosen profession.. .law 
enforcement 

(18) "Law Enforcement Officer" means an appointee of a 
criminal justice agency or of the State or of any political 
subdivision of the State who, by virtue of his office, is 
empowered to make arrests for violations of the laws of 
this State. Specifically excluded from this title are 
sheriffs and their sworn appointees with arrest authority 
who are govemed by the provisions of Chapter 17E of 
the General Statutes. 

( 1 9) "Law Enforcement Training Points" means points earned 
toward the Law Enforcement Officers' Professional 
Certificate Program by successfiil completion of 
commission-approved law enforcement training courses. 
Twenty classroom hours of commission-approved law 
enforcement training equals one law enforcement 
training point 

(20) "LIDAR" means a speed-measuring instrument that 
electronically computes, fi^om transmitted infrared light 
pulses, the speed of a vehicle under observation. 

(21) "Local Confmement Personnel" means any officer, 
supervisor or administrator of a local confinement facility 
in North Carolina as defined in G.S. 153A-217; any 
officer, supervisor or administrator of a county 
confinement facility in North Carolina as defined in G.S. 
1 53 A-2 1 8; or, any officer, supervisor or administrator of 
a district confinement facility in North Carolina as 
defmedinG.S. 153A-219. 

(22) "Misdemeanor" means those criminal offenses not 
classified under the laws, statutes, or ordinances as 
felonies. Misdemeanor offenses are classified by the 
Commission as follows: 

(a) "Class A Misdemeanor" means a misdemeanor 
committed or omitted in violation of any common 
law, duly enacted ordinance or criminal statute of 
this state which is not classified as a Class B 
Misdemeanor pursuant to Sub-item (22)(b) of this 
Rule. Class A Misdemeanor also includes any act 
committed or omitted in violation of any common 
law, duly enacted ordinance, criminal statute, or 
criminal traffic code of any jurisdiction other than 
North Carolina, either civil or military, for which 
the maximum punishment allowable for the 
designated offense under the laws, statutes, or 
ordinances of thejurisdiction in which the offense 
occurred includes imprisonment for a term of not 
more than six months. Specifically excluded from 
this grouping of "Class A Misdemeanor" criminal 



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1690 



PROPOSED RULES 



offenses for jurisdictions other than North 
Carolina, are motor vehicle or traffic offenses 
designated as misdemeanors under the laws of 
other jurisdictions, or duly enacted ordinances of 
an authorized governmental entity with the 
exception of the offense of impaired driving 
which is expressly included herein as a Class A 
Misdemeanor if the offender could have been 
sentenced for a term of not more than six months. 
Also specifically included herein as a Class A 
Misdemeanor is the offense of impaired driving, 
if the offender was sentenced under punishment 
level three [G.S. 20-179(1)], level four [G.S. 
20-1 79(j)], or level five [G.S. 20-179(k)]. Class 
A Misdemeanor shall also include acts committed 
or omitted in North Carolina prior to October 1, 
1994 in violation of any common law, duly 
enacted ordinance or criminal statute, of this state 
for which the maximum punishment allowable for 
the designated offense included imprisonment for 
a term of not more than six months, 
(b) "Class B Misdemeanor" means an act committed 
or omitted in violation of any common law, 
criminal statute, or criminal traffic code of this 
state which is classified as a Class B 
Misdemeanor as set forth in the Class B 
Misdemeanor manual as published by the North 
Carolina Department of Justice which is hereby 
incorporated by reference and shall automatically 
include any later amendments and editions of the 
incoiporated material as provided by G.S. 150B- 
21.6. Copies of the publication may be obtained 
from the North Carolina Department of Justice, 
Post Office Box 629, Raleigh, North Carolina 
27602. There is no cost per manual at the time of 
adoption of this Rule. Class B Misdemeanor also 
includes any act committed or omitted in violation 
of any common law, duly enacted ordinance, 
criminal statute, or criminal traffic code of any 
jurisdiction other than North Carolina, either civil 
or military, for which the maximum punishment 
allowable for the designated offense under the 
laws, statutes, or ordinances of the jurisdiction in 
which the offense occurred includes 
imprisonment for a term of more than six months 
but not more than two years. Specifically 
excluded from this grouping of "Class B 
Misdemeanor" criminal offenses for jurisdictions 
other than North Carolina, are motor vehicle or 
traffic offenses designated as being misdemeanors 
under the laws of other jurisdictions with the 
following exceptions: Class B Misdemeanor does 
expressly include, either first or subsequent 
offenses of driving while impaired if the 
maximum allowable punishment is for a term of 
more than six months but not more than two 
years, and-driving while license permanently 
revoked or permanently s u s pende d, suspended 



and those traffic offenses occurring in other 
jurisdictions which are comparable to tfie traffic 
offenses specifically listed in Ae Class B 
Misdemeanor manual. "Class B Misdemeanor" 
shall also include acts committed or omitted in 
North Carolina prior to October 1, 1994 in 
violation of any common law, duly enacted 
ordinance, criminal statute, or criminal traffic 
code of this state for which the maximum 
punishment allowable for the designated offense 
included imprisonment for a term of more than 
six months but not more than two years. 

(23) "Parole Case Analyst" means an employee of the North 
Carolina Department of Correction who works under the 
supervision of the North Carolina Parole Commission, 
whose duties include analyzing and processing cases 
under consideration for parole, preparing and presenting 
parole recommendations, analyzing and processing 
executive clemency matters and interviewing inmates. 

(24) "Pilot Courses" means those courses developed 
consistent with the curriculum development pohcy 
adopted by the Commission on May 30, 1986. This 
policy shall be administered by the Education and 
Training Committee of the Commission consistent with 
12NCAC9C.0404. 

(25) "Probation/Parole Officer" means an employee of the 
Division of Adult Probation and Parole whose duties 
include supervising, evaluating, treating, or instructing 
offenders placed on probation or parole or assigned to 
any other community-based program operated by the 
Division of Adult Probation and Parole. 

(26) "Probation/Parole Intake Officer" means an employee of 
the Division of Adult Probation and Parole, other than a 
regular Probation/Parole officer, whose duties include 
conducting, preparing, or delivering investigations, 
reports, and recommendations, either before or after 
sentencing, upon the request or referral of the court, the 
Parole Commission, or the Director of the Division of 
Adult Probation and Parole. 

(27) "Probation/Parole Intensive Officer" means an employee 
of the Division of Adult Probation and Parole other than 
a regular probation/parole officer, probation/parole intake 
officer, and probation/parole officer-surveillance who is 
duly sworn, empowered with the authority of arrest and 
is an authorized representative of the courts of North 
Carolina and the Department of Correction, Division of 
Adult Probation and Parole, whose duties include 
supervising, investigating, reporting, counseling, 
treating, and surveillance of serious offenders in an 
intensive probation and parole program operated by the 
Division of Adult Probation and Parole who serves as the 
lead officer in such a unit. 

(28) "Probation/Parole Officer - Surveillance" means an 
employee of the Division of Adult Probation and Parole 
other than a regular probation/parole and a 
probation/parole intake officer who is duly sworn, 
empowered with the authority of arrest and is an 
authorized representative of the courts of North Carolina 



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14:19 



PROPOSED RULES 



and the Department of Correction, Division of Adult 
Probation and Parole whose duties include supervising, 
investigating, reporting, and surveillance of serious 
offenders in an intensive probation and parole program 
operated by the Division of Adult Probation and Parole 
who is trained in community corrections and law 
enforcement techniques. 
(29) "Qualified Assistant" means an additional staff 
person designated as such by the School Director to 
assist in the administration of a course when an 
accredited institution or agency assigns additional 
res ponsibihties to the certified School Director during 
the planning, development and implementation of an 
accredited course. 

(29){30} "Radar" means a speed-measuring instrument that 
transmits microwave energy in the 10,500 to 10,550 
MHZ frequency (X) band or transmits microwave energy 
in the 24,050 to 24,250 MHZ frequency (K) band and 
either of which operates in the stationary and/or moving 
mode. "Radar" fiirther means a speed-measuring 
instrument that transmits microwave energy in the 33,400 
to 36,000 MHZ (Ka) band and operates in either the 
stationary or moving mode. 

(36)(31) "Resident" means any youth committed to a facility 
operated by the North Carolina Division of Youth 
Services. 

(3i)(32) "School" or "criminal justice school" means an 
institution, college, university, academy, or agency which 
offers criminal justice, law enforcement, penal, 
correctional, or traffic control and enforcement training 
for criminal justice officers or law enforcement officers. 
"School" includes the criminal justice training course 
curriculum, instructors, and facilities. 

(32) (33) "School Director" means the person designated by the 
sponsoring institution or agency to administer the 
criminal justice school. 

(33)(34) "Speed-Measuring Instruments" (SMI) means those 
devices or systems, including radar time-distance, and 
LIDAR, formally approved and recognized under 
authority of G.S. 1 7C-6(a)( 1 3) for use in North Carolina 
in determining the speed of a vehicle under observation 
and particularly includes all named devices or systems as 
specifically referenced in the approved list of 12 NCAC 
9C.0601. 

04) (35) "Standards Division" means the Criminal Justice 
Standards Division of the North Carolina Department of 
Justice. 

(35){36) "Time-Distance" means a speed-measuring instrument 
that electronically computes, from measurements of time 
and distance, the average speed of a vehicle under 
observation. 

(36) (37) "State Youth Services Officer" means an employee of the 
North Carolina Division of Youth Services whose duties 
include the evaluation, treatment, instruction, or 
supervision of juveniles committed to that agency. 

Authority G.S. 17C-2; 17C-6; 17C-W; 153A-217. 



TITLE ISA - DEPARTMENT OF ENVIRONMENT 
AND NATURAL RESOURCES 

Notice is hereby given in accordance with G.S. I50B-21.2 that 
the Commission for Health Services intends to amend rules 
cited as ]5A NCAC 18A .1809, 1811. and 1812. Notice of Rule- 
making Proceedings was published in the Register on December 15, 
1999. 

Proposed Effective Date: April 1, 2001 

A Public Hearing will be conducted at 9:00 a.m. on May 4, 2000 
at the Ground Floor Hearing Room, Archdale Building, 512 N 
Salisbury St., Raleigh. NC 27604. 

Reason for Proposed Action: The Rules are required by 
legislation the General Assembly passed and were originally put in 
place as temporary rules with an effective date of January 31, 2000. 
We are now moving forward with the permanent process with an 
effective date of April 1, 2001. 

Comment Procedures: Written comments will be received until 
May 4. 2000. Please send all comments to: Susan C. Grayson. 
DENR/Environmental Health Services. 1632 Mail Service Center, 
Raleigh, NC 27699-1632. 



Fiscal Impact 
State Local 



Sub. 



None 
• 



CHAPTER 18 - ENVIRONMENTAL HEALTH 

SUBCHAPTER 18A - SANITATION 

SECTION .1800 - SANITATION OF LODGING PLACES 

.1809 LAVATORIES AND BATHS 

(a) Baths, lavatories, and toilets shall be provided for each room 
or unit in establishments constructed on or after December 1 , 1 988. 
Such fixtures shall be kept clean and in good repair. 

(b) All lavatory and bathing facilities shall include hot and cold 
running water under pressure with a mixing faucet, a clean towel in 
good repair and provided daily for each guest, and soap. The 
lavatory, its handles, faucet, and vanity shall be washed using an all 
purpose cleaner and rinsed daily if the room has been occupied. A 
sanitizer shall be applied to the lavatory and vanitv using a method 
such as a wipe-on chemically-treated disposable sanitizing towel or 
equivalent. The sanitizer shall be left to air dry. Sanitizing solutions 
shall consist of iodophors. quaternary ammonium or other chemicals 
or methods that are equivalent to the action of 50 parts per million 
chlorine solution. A method or equipment for testing the sanitizer 
shall be available and used to insure minimum prescribed sanitizer 
strength. 

(c) Floors, walls, and ceilings shall be cleanable, durable, and 
shall be kept clean and in good repair. 

(d) All sewage and other liquid wastes shall be disposed of in a 
public sewer system or, in the absence of a public sewer system, by 



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PROPOSED RULES 



a sanitary system of sewage treatment and disposal constructed and 
operated in accordance with 1 5A NCAC 1 8A . 1 900. 

Authority G.S. 130A-248. 

.1811 DRINKING WATER FACILITIES 

(a) Facilities for the dispensing of drinking water shall be of 
sanitary design. If drinking fountains are provided, they shall be of 
angle-jet type. 

(b) Multi-use o r single se r vice, utensils such as glasses, cups, 
pi t che r s o r ice bucke t s ice buckets, or ice bucket lids mav4je when 
used, pr ovided all mul t i-use u t ensils are shall be washed, rinsed and 
washed tho r oughly, subjected to a an approved sanitizing treatment, 
and stored and handled in a sanitary manner befo r e being given t o 
succeeding guests, manner to prevent contamination. For the 
washing, sanitizing treatment, and storage of multi-use utensils, 
equipment and methods f acili t ies meeting the requirements of the 
"Sani t a t ion "Rules Governing the Sanitation of Restaurants and 
Other Foodhandling Establishments" 15A NCAC 18A .2600 shall 
be pr ovided, provided; except, when properly fitting disposable food 
grade liners are provided, ice buckets shall be treated as non-food 
contact surfaces and shall be washed, using an all purpose cleaner 
suitable for food contact surfaces, and rinsed. The lid used with the 
lined ice bucket shall be washed, rinsed and subjected to an 
approved sanitizing treatment in place. The lavatory shall be 
cleaned and treated with an approved sanitizer prior to using the 
water from the lavatory to clean. Submersion of ice buckets and lids 
during in-place cleaning procedures is not required. Tliese u t ensils 
shall no t be washed in room lavato r ies. S in gle-se r vice ite m s shall be 
s t o r ed and handled in a sanitary manne r . Clean glasses shall be 
individually wrapped or fitted with a single-service cap that covers 
the edge of the glass. If d i s p osa b le o r s i ngle se r vi c e p las t ic line r s a r e 
provided fo r ice buckets, tlie sanitization of buckets i s no t r equ ir e d 

(c) Ice used for room service shall be manufactured from an 
approved water supply and shall be stored and handled in a sanitary 
manner. Ice storage bins shall not be used for any other purpose and 
shall be kept clean and in good repair. Where ice is made on the 
premises, the machines shall be located in a protected place. Scoops 
shall be provided so guests or employees can dispense ice in a 
sanitary manner. Machines, equipment, utensils, and the room or 
area in which the machines are located shall be kept clean and in 
good repair. All ice machines for use by guests installed after 
January 1, 1996, shall dispense ice without exposing stored ice to 
guests. 



(d) Icci 



rand 



: s t o r ag e brns shall not be used l or any otlier purpose ; 
shall b e kep t cl e an and in good repaii\ Employees cleaning ice 
buckets, ice bucket lids, coffee or tea makers, shall have washed 
their hands immediately prior to cleaning these item- 
re^ Single service glasses, cups, ice buckets, ice bucket lids, or 
food grade ice bucket liners may be used, if discarded after each use. 
Single service items, including clean disposable towels, shall be 
stored and handled in a manner to prevent contamination. 



Where natural ventilation only is provided, outside openings shall be 
screened. Windows and glass doors shall be kept clean and in good 
repair. In the absence of windows, air conditioning and artificial 
Ughting constitutes satisfactory compliance. 

(b) Window coverings shall be kept clean and in good repair. 

(c) Two sheets shall be provided for each bed. The lower sheet 
shall be folded under both ends of the mattress. The upper sheet 
shall be folded under the mattress at the lower end and folded over 
the cover for at least six inches at the top end. Bed linens, including 
sheets, pillow cases, blankets and bedspreads, shall be kept clean 
and in good repair. 

(d) The floors, walls and ceilings of bedrooms, closets and 
storage areas shall be kept clean and in good repair. Furniture, 
fixtures, carpets and other accessories shall be kept clean and in 
good repair. 

(e) All lodging establishments shall be kept free of roaches, flies 
and other pests. Guestrooms having outside openings shall be 
effectively screened unless air conditioned. 

£1} Coffee and tea makers shall be kept clean. Coffee or tea p ots 
and other multi-use items exposed to heat during use may be washed 
and rinsed in place. 

Authority G.S. 130A-248; 

******************** 

Notice is hereby given in accordance with G.S. 150B-21.2 that 
the Commission for Health Services intends to amend rules 
cited as ISA NCAC 18A .2802, .2806, .2810. .2812, .2815, .2825. 
Notice of Rule-making Proceedings was published in the Register 
on December 15, 1999. 

Proposed Effective Date: April 1, 2001 

A Public Hearing will be conducted at 9:00 a.m. on May 4, 2000 
at the Ground Floor Hearing Room, Archdale Building, 512 N. 
Salisbury St, Raleigh, NC 27604. 

Reason for Proposed Action: Agency staff recognized the 
immediate need to amend the Rules (15 A NCAC 18A .2800) to 
address compliance feasibility issues concerning child care centers 
licensed for fewer than 13 children and located in a residence. 

Comment Procedures: Written comments will be accepted 
through May 4, 2000. Please submit written comments to Ed 
Norman, Department of Environment and Natural Resources, 
Division of Environmental Health , Environmental Health Services 
Section, 1632 Mail Service Center, Raleigh, NC 27699-1632. 



Fiscal Impact 
State Local 



Sub. 



None 
/ 



Authority G.S 130A-248. 

.1812 GUESTROOMS 

(a) Guestrooms and bathrooms shall have lighting with a 
minimum of 30 foot-candles of light at 30 inches above the floor. 



CHAPTER 18 - ENVIRONMENTAL HEALTH 



SUBCHAPTER 18A - SANITATION 



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PROPOSED RULES 



SECTION .2800 - SANITATION OF CHILD DAY CARE 
FACILITIES 

.2802 APPROVAL OF CONSTRUCTION AND 
RENOVATION PLANS 

(a) Plans drawn to scale and specifications for new child care 
centers shall be submitted to the local health department for review 
and approval prior to initiating construction. Plans drawn to scale 
and specifications for changes to building dimensions, kitchen 
specifications, or other modifications to existing child care centers 
shall also be submitted to the local health department for review and 
approval prior to construction. Plans drawn to scale and 
specifications for prototype "fianchise" or "chain" child care centers 
shall be submitted to DENR, Division of Environmental Health, 
Environmental Health Services Section, Children's Environmental 
Health Branch, PC Box 29534, Raleigh, North Carolina 27626- 
0534. The initial inspection for new construction or the first 
inspection following modifications to existing child care centers 
shall not be made by the local health department unless these plans 
have been approved. For new or proposed child care centers 
licensed for fewer than 1 3 children and located in a residence, a site 
visit to evaluate and assist in meeting the requirements of this 
Section may be requested by tiie child care operator prior to 
submission of plans and shall be conducted by die local health 
department within 30 days of the request. 

(b) Review of the plans by the local health department or the 
Environmental Health Services Section shall be based on the 
requirements of this Section. 

(c) Construction and modifications shall comply with the 
approved plans. 

Authority G.S. 110-91. 

.2806 FOOD STORAGE 

(a) Food products shall be stored in approved, clean, tightly 
covered, storage containers once the original package is opened. 
Container covers shall be impervious and nonabsorbent. 

(b) Foods not stored in the product container or package in which 
it was obtained, shall be stored in a tightiy covered, approved food 
storage container identifying the food by common name. 

(c) Food shall be stored above the floor in a manner that protects 
the food fi-om splash and other contamination and that permits easy 
cleaning of the storage area. 

(d) Food and containers of food shall not be stored under 
exposed or unprotected sewer lines or water lines, except for 
automatic fire protection sprinkler heads that may be required by 
law. Food shall not be stored in toilet or laundry rooms, or other 
areas where there is a potential for contamination. Child care 
centers licensed for fewer than 13 children and located in a 
residence mav store properly protected food in laundry rooms. 

(e) All food shall be stored in a manner to protect it fi-om dust, 
insects, drip, splash and other contamination. 

(f) Packaged food such as milk or other fluid containers may be 
stored in undrained ice as long as any individual units are not 
submerged in water. Wrapped sandwiches shall not be stored in 
direct contact with ice. 

(g) Refiigerated storage: 

(1) Refrigeration equipment shall be provided in such 



number and of such capacity to assure the maintenance 
of potentially hazardous food at required teinperatures 
during storage. Each refiigerator shall be provided with 
a numerically scaled indicating thermometer, accurate to 
±3°F, (± 1 .5°C) located to measure the air temperature in 
the warmest part of the refrigerator and located to be 
easily readable. Recording thermometers, accurate to 
±3°F (±1.5°C), may be used in lieu of indicating 
thermometers; 

(2) Potentially hazardous food requiring refrigeration after 
preparation shall be cooled to an internal temperature of 
45 °F (7°C), or below. Cooling of potentially hazardous 
foods shall be initiated upon completion of preparation or 
a period of hot storage. Methods such as shallow pans, 
agitation, quick chilling or water circulation external to 
the food containers shall be used to cool large quantities 
of potentially hazardous food Potentially hazardous 
food to be transported cold shall be prechilled and held 
at a temperature of 45°F (7°C) or below; 

(3) Ice used for cooling stored food and food containers shall 
not be used for human consumption. 

(h) Hot storage: 

(1) Hot food storage equipment shall be provided in such 
number and of such capacity to assure the maintenance 
of food at the required temperature during storage. Each 
hot food unit shall be provided with a numerically scaled 
indicating thermometer, accurate to ± 3°F (± 1.5°C), 
located to measure the air temperature in the coolest part 
of the unit and located to be easily readable. Recording 
thermometers, accurate to ±3°F (± 1.5°C), may be used 
in lieu of indicating thermometers. Where it is 
impractical to install thermometers on equipment such as 
steam tables, steam ketties, heat lamps, cal-rod units, or 
insulated food transport carriers, a metal stem-type 
numerically scaled indicating product thermometer shall 
be available and used to check internal food temperature; 

(2) The internal temperature of potentially hazardous foods 
requiring hot storage shall be 140°F (60°C) or above 
except during necessary periods of preparation and 
service. Potentially hazardous food to be transported hot 
shall be held at a temperature of 140°F (60°C) or above. 

Authority G.S. 110-91. 

.281 SPECIFICATIONS FOR KITCHENS 

(a) For child care centers licensed for or serving food to fewer 
than 30 children: 

(1) Domestic kitchen equipment may be used Domestic 
kitchen equipment shall include at least a 
two-compartment sink, drainboards or countertop space 
of adequate size, refrigeration equipment and adequate 
cooking equipment. Child care centers using multi- 
service articles shall also provide a dishwasher. In lieu of 
a dishwasher and two-compartment sink, a 
three-compartment sink with drainboards or counterspace 
countertop space of adequate size on each end may be 
used; 

(2) A separate lavatory for handwashing is required in food 



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1694 



PROPOSED RULES 



prqDaration areas. If the dishwashing area is separate 
from the food preparation area, an additional lavatory 
shall be required in the dishwashing area. These 
handwashing lavatories shall be used only by food 
service personnel; and 
(3) A commercial hood shall be installed when foods are 
fried on-site. The hood shall be installed in accordance 
with the North Carolina Building Code and approved by 
the local building code enforcement agent. 

(b) For child care centers licensed for or serving food to 30 or 
more children: 

(1) Approved food service equipment shall be used. When 
domestic refrigeration equipment is used the following 
provisions shall apply: 

(A) Potentially hazardous foods shall not be prepared 
prior to the day that such foods are to be served; 

(B) Potentially hazardous foods that have been heated 
shall not be reheated or placed in refrigeration to 
be used in whole or in part on another day; 

(C) Salads containing potentially hazardous food shall 
not be prepared on-site; and 

(D) All meats, poultry, and fish shall be purchased in 
pre-portioned, ready-to-cook form. 

(2) Food service equipment shall include: 

(A) Where meals are prepared and multi-service 
articles are used, at least a three-compartment sink 
with drainboards or countertop space of adequate 
size on each end, refiigeration equipment, and 
cooking equipment; 

(B) Where meals are prepared and only single-service 
articles are used, at least a two-compartment sink 
with drainboards or counter top space of adequate 
size on each end, refiigeration equipment, and 
cooking equipment; or 

(C) Where no meals are prepared and only single- 
service articles are used, refiigeration equipment, 
and at least a domestic two-compartment sink 
with drainboards or countertop space of adequate 
size on each end. 

(3) A separate food preparation sink with drainboards shall 
be provided for the washing and processing of foods 
except where plan review shows that volume and 
preparation frequency do not require separate facilities. 

(4) A separate lavatory for handwashing is required in food 
preparation and food service areas. If the dishwashing 
area is separate from the food preparation area, an 
additional lavatory shall be required in the dishwashing 
area. These handwashing lavatories shall be used only 
by food service personnel. 

(5) A commercial hood shall be installed when foods are 
fiied on-site. The hood shall be installed in accordance 
with the North Carolina Building Code and approved by 
the local building code enforcement agent. 

(c) If baby food is prepared in the infant or toddler area, an 
infant/toddler food service area shall be provided. The 
infant/toddler food service area shall be used exclusively for the 
storage of infant bottles, warming of bottles, storage of fully 
prepared baby foods in their containers and the mixing of dry cereals 



with formula or with potable water from a source other than a 
lavatory used for handwashing. The food preparation counters, 
bottle warming equipment, food and food contact surfaces shall not 
be within reach of children. The infant/toddler food service area 
shall contain at least an adequate refiigerator, bottle warming 
equipment, an easily cleanable counter top and a separate lavatory 
for food service handwashing only. Domestic food service 
equipment may be used in infant/toddler food service areas 
regardless of child care center size. 

(1) All equipment shall be cleaned at least daily. Warming 
equipment shall be cleaned and sanitized as required in 
Rule .2812 or .2813 of this Section. 

(2) After each use, all multi-use and multi-service eating and 
drinking articles shall be cleaned and sanitized in the 
child care center kitchen. 

(3) Single-service articles shall be handled as required in 
Rule .2814 of this Section. 

(4) Counter, shelf or cabinet space shall be provided for food 
storage. All dry cereal shall be stored in closed, labeled 
containers. Food supplies shall be stored in accordance 
with this Section. 

(d) Equipment that was installed in a child care center prior to 
July I, 1991 that does not meet all the design and fabrication 
requirements of this Section shall be deemed acceptable if it is in 
good repair, capable of being maintained in accordance with the 
rules of this Section and the food-contact surfaces are nontoxic. 
This exception shall not apply to equipment in Paragraph (c) of this 
Rule or to commercial hoods that are required for fiying foods. 
Replacement equipment and new equipment acquired after July 1, 
1991 shall meet the requirements of Paragraphs (a), (b) and (c) of 
this Rule. Licensed child care centers that increase the number 
licensed for or that increase the number of children to whom they 
serve food, shall comply with all the rules of this Section. Upon 
change of ownership, or the closing of the operation and the 
issuance of a new license, the child care center shall comply with all 
the rules of this Section. 

Authority G.S. 110-91. 

.2812 MANUAL CLEANING AND SANITIZING 

(a) Child care centers licensed for or serving food to 30 or more 
children, shall provide and use a three-compartment sink with 
drainboards or counter top space of adequate size on each end if 
utensils and equipment are manually cleaned and sanitized. 

(b) Child care centers licensed for or serving food to fewer than 
30 children may Aat use a domestic dishwasher and two 
compartment sink witli di ' ainboa r ds or coun t ertop spac e of ad e qua t e 
si ze on e ach e nd for sanitizing multi-service articles shall sanitize 



ai t icles and 



washing and rinsing of mul t i-use and niul t i-s e iTic e 
equipment. U t ensils and e quipmen t shall tlien b e sani t iz e d in t li e 
sink as required in Subparagraph (e)(4) of this Rule. Sink 
compartments shall be large enough to submerge the largest items to 
be washed and each compartment shall be supphed with hot and 
cold running water. 

(c) If required under Rule 1 8A .28 1 of this Section, Drainboards 
drainboards or countertop space of adequate size shall be provided 
for proper handling of soiled utensils prior to washing and cleaned 
utensils following sanitizing. For child care centers originally 



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14:19 



PROPOSED RULES 



licensed on or after April 15,1 998, drainboards or countertop space 
shall be no less than 24" long. For child care centers licensed for 
fewer than 13 children and located in a residence, a domestic 
dishwasher may be used to provide the equivalent of 24|| of 
drainboard space, and other designated areas not contiguous with the 
sink may be utilized to meet drainboard or countertop space 
requirements. Replacement equipment and new equipment acquired 
on or after April 15, 1998 shall meet the requirements of this 
Paragraph. Upon change of ownership, or the closing of the 
operation and the issuance of a new license, a child care center shall 
also comply with this Paragraph. 

(d) Equipment and utensils shall be preflushed or prescraped and, 
when necessary, presoaked to remove gross food particles and soil. 

(e) Except for fixed equipment and utensils too large to be 
cleaned in sink compartments, manual washing, rinsing, and 
sanitizing shall be conducted in the following sequence; 

( 1 ) Sinks shall be cleaned and sanitized prior to use. 

(2) Equipment and utensils shall be thoroughly washed in the 
first compartment with a hot detergent solution that is 
kept clean. 

(3) Equipment and utensils shall be rinsed free of detergent 
and abrasives with clean water in the second 
compartment. 

(4) The food-contact surfaces of equipment and utensils shall 
be sanitized in the third compartment by: 

(A) Immersion for at least one minute in clean, hot 
water at a temperature of at least 170°F (77°C); 

(B) Immersion for at least two minutes in a clean 
solution containing at least 50 parts per million 
(ppm) of available chlorine at a temperature of at 
least 75°F (24°C); 

(C) Immersion for at least two minutes in a clean 
solution containing at least 12.5 ppm of available 
iodine and having a pH not higher than 5.0 and at 
a temperature of at least 75°F (24°C); or 

(D) Immersion for at least two minutes in a clean 
solution containing at least 200 ppm of quaternary 
ammonium products and having a temperature of 
at least 75°F (24°C), provided that the product is 
labeled to show that it is effective in water having 
a hardness value at least equal to that of the water 
being used. 

(f) For utensils and equipment which are either too large or 
impractical to sanitize in a dishwashing machine or dishwashing 
sink, a spray-on or wipe-on sanitizer shall be used. When spray-on 
or wipe-on sanitizers are used, the chemical strengths shall be those 
required for sanitizing multi-use eating and drinking utensils. 
Spray-on or wipe-on sanitizers shall be prepared daily and kept on 
hand for bactericidal treatment. 

(g) When hot water is used for sanitizing, the following facilities 
shall be provided and used: 

(1) An integral heating device or fixture installed in, on, or 
under the sanitizing compartment of the sink capable of 
maintaining the water at a temperature of at least 1 70°F 
(77°C); and 

(2) A numerically scaled indicating thermometer, accurate to 
±3°F (±1 .5°C), convenient to the sink for frequent checks 
of water temperature; and 



(3) Dish baskets of such size and design to permit complete 

immersion of the tableware, kitchenware, and equipment 

in the hot water. 

(h) An approved testing method or equipment shall be available, 

convenient, and regularly used to test chemical sanitizers to insure 

minimum prescribed strengths. 

(i) After sanitization, all equipment and utensils shall be air dried. 

Authority G.S. 110-91. 

.2815 WATER SUPPLY 

(a) Running water under pressure shall be provided in sufficient 
quantities to meet the needs of cooking, cleaning, drinking, toilets, 
and outside uses without producing water pressure lower than that 
required by the North Carolina Plumbing Code. 

(b) The water supply shall meet the requirements of 1 5 A NC AC 
18C or 15A NCAC 18A .1700 Protection of Water Supplies. 
Samples of water shall be collected by the Environmental Health 
Specialist and submitted to a state certified laboratory for 
bacteriological analysis annually. Other tests of water quality, as 
indicated by possible sources of contamination, may be collected by 
the Environmental Health Specialist. 

(c) No cross-connections with an unapproved water supply shall 
exist. If potential back-flow conditions exist, an approved back- flow 
prevention device shall be provided. 

(d) Water heating equipment that is sufficient to meet the 
maximum expected requirements of the child care center shall be 
provided. For child care centers not located in a residence. Ca p acity 
capacity and recovery rates of hot water heating equipment shall be 
based on number and size of sinks, capacity of dishwashing 
machines, capacity of laundering machines, diaper changing 
facilities, and other food service and cleaning needs. For child care 
centers licensed for fewer than 13 children and located in a 
residence, an existing water heater, or the equivalent replacement 
shall be adequate if all required temperatures are maintained. Hot 
and cold water under pressure shall be easily accessible to all rooms 
where food is processed or handled, rooms in which utensils or 
equipment are washed, and other areas where water is required for 
cleaning and sanitizing, including lavatories and diaper changing 
areas. 

(e) Hot water heating equipment shall provide hot water at a 
minimum temperature of 1 30°F (54°C) at the point of use when hot 
water is not used for sanitizing. When hot water is used for 
sanitizing, a minimum temperature of 140°F (60°C) shall be 
provided at the point of use. However, hot water to those areas 
accessible to children, including lavatories serving diaper changing 
areas, shall be no less than 90°F (32°C) and shall not exceed 1 10°F 
(43°C), except that for child care centers serving only school-aged 
children the 90°F (32°C) minimum temperature requirement shall 
not apply. 

Authority G.S. 110-91. 

.2825 WALLS AND CEILINGS 

(a) The walls and ceilings, including doors and windows, of all 
rooms and areas shall be kept clean and in good repair. All walls 
shall be nonabsorbent and easily cleanable. 

(b) Ceilings in rooms in which food is stored, handled or 



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Aprils, 2000 



1696 



PROPOSED RULES 



prepared, utensil-washing rooms, and toilet rooms shall be 
non-absorbent and easily cleanable. Acoustic ceiling material may 
be used where ventilation precludes the possibility of grease and 
moisture absorption. For child care centers licensed for fewer than 
n children and located in a residence, ceilings of residential 
construction are acceptable if kept clean and in good repair. 

(c) Walls and ceilings, including doors and windows in areas 
accessible to children, shall be free of peeling, flaking, or chalking 
paint 

(d) Walls and ceilings, including doors and windows, of all 
rooms and areas shall be free of identified lead poisoning hazards as 
defined under 15A NCAC 18A .3101. 

Authority G.S. 110-91. 



TITLE 21 - OCCUPATIONAL LICENSING BOARDS 
CHAPTER 16 - BOARD OF DENTAL EXAMINERS 

Notice is hereby given in accordance with G.S. 150B-21.2 that 
the NC State Board of Dental Examiners intends to adopt rules 
cited as 21 NCAC 16W .0101 - .0103; amend rules cited as 21 
NCAC 161. 0102 -.0105; 16M.0102; 16R. 0102 -.0105; 16S.0101 
- .0102. .0201. .0203, .0205. Notice of Rule-making Proceedings 
was published in the Register on September 15, 1999, October 15, 
1999 and February 1, 2000. 



to clarify continuing education reporting requirements for dental 

hygienists and dentists. 

21 NCAC 161.0105; 16R.0105 - The amendments are necessary 

to clarify consequences if the dental hygienist or dentist fails to 

comply with the continuing education requirement 

21 NCAC 16R .0104 - The amendment is necessary to set out 

procedures for dentists requesting exemption from continuing 

education hours. 

Comment Procedures: Any person desiring to present oral data, 
views, or arguments on the proposed rules must, at least 10 days 
prior to the proposed hearing, file a notice with the Board. Notice 
of such request to appear or failure to give timely notice may be 
waived by the Board in its discretion. Comments should be limited 
to five minutes. Any person permitted to make an oral presentation 
is directed to submit a written statement of such presentation to the 
Board prior to or at the time of such hearing. The Board's address 
is PO Box 32270, Raleigh, NC 27622-2270. Any person may file 
written submission of comments or arguments at any time up to and 
including May 4, 2000. 



Fiscal Impact 
State Local 



Sub. 



None 
/ 



SUBCHAPTER 161 - ANNUAL RENEWAL OF DENTAL 
HYGIENIST LICENSE 



Proposed Effective Date: April 1, 2001 

A Public Hearing will be conducted at 1 0:00 am on April 29, 2000 
at 3716 National Drive, Suite 221, Chatham Building of Glenwood 
Place, Raleigh, NC. 

Reason for Proposed Action: 

21 NCAC 16M .0102 - The amendment is necessary because 

without an increase in funds, the Caring Dentist Program cannot 

accept new participants. 

21 NCAC 16S. 0101 -.0102,. 0201, .0203, .0205- The amendments 

are necessary to integrate dental hygienists into the Caring Dentist 

Program. 

21 NCA C 16W. 0101 -The adoption is necessary to define the term 

"direction" as used in G.S 90-233(a). 

21 NCAC 16W .0102 - The adoption is necessary to set out training 

requirements for public health hygienists performing clinical 

procedures pursuant to G.S. 90-23 3 (a). 

21 NCAC 16W. 0103 - The adoption is necessary to set out training 

requirements for public health hygienists performing primary 

preven tive procedures. 

21 NCAC 161 .0102 - The amendment is necessary to set out 

procedures for dental hygienists requesting a reduced number of 

continuing education hours. 

21 NCA C 16I.0103;16R .0102- The amendments are necessary to 

increase approved continuing education sponsors for dental 

hygienists and dentists and to clarify under what circumstances 

home study courses are accepted. 

21 NCAC 161 .0104; 16R.0103 - The amendments are necessary 



SECTION .0100 - ANNUAL RE>fEWAL 

.0102 CONTINUING EDUCATION REQUIRED 

(a) As a condition of license renewal, each dental hygienist must 
complete a minimum of six clock hours of continuing education 
each calendar year. Two of the six clock hours may be acquired 
through home study courses. For home study courses to be counted 
towards this continuing education requirement, the hygienist must 
successfully complete a test following the course and obtain a 
certificate of completion. Current certification in CPR is required 
in addition to the mandatory continuing education hours. 

£b} A dental hvgienist who can demonstrate a disabling condition 
or extenuating circumstance mav request a reduced number of 
required continuing education hours during a particular period. 
Written documentation of a disabling condition or extenuating 
circumstance that interferes with the hygienist' s ability to complete 
the required hours shall be provided to the Board. The Board may 
grant or deny such requests on a case by case basis. In considering 
the request the Board may require additional documentation 
substantiating any specified disability or extenuating circumstance. 

Authority G.S 90-225.1. 

.0103 APPROVED COURSES AND SPONSORS 

(a) Courses in satisfaction of this requirement must be directly 
related to clinical patient care. Hours spent reviewing dental or 
dental hygiene publications or videos shall not count toward 
fiilfilling the continuing education r e quii - ement requirement with 
the exception of home study courses as described in Rule .0102 of 



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April 3, 2000 



14:19 



PROPOSED RULES 



this Subchapter. 
(b) Approved continuing education course sponsors include: 

(1) providers recognized by the American Dental 
Association's Continuing Education Recognition 
Program, the Academy of General Dentistry, the 
American Dental Hygienists' Association, or components 
of such organizations; 

(2) North Carolina Area Health Education Centers; 

(3) educational institutions with dental dental, or dental 
hygiene or dental assisting schools or departments; and 
national, state or local societies or a s so c ia t ions. 
associations" and 



(4) 
(5) 



local, state or federal governmental entities. 



Authority G.S. 90-225.1. 

.0104 REPORTING CONTINUING EDUCATION 

(a) The number of hours completed to satisfy this requirement 
shall be indicated on the renewal application form submitted to the 
Board and confirmed by the hygienist's signature. Upon request by 
the Board or its authorized agent, the hygienist shall provide official 
documentation of attendance at courses indicated. Such 
documentation shall be provided by the organization offering or 
sponsoring the course. Such docu m e nt a t io n Documentation must 
include: 

(1) the t itle and a course desc r i pt ion; title; 

(2) the number of hours of instruction; 

(3) the date and loca t ion of the course attended; 

(4) the name(s)ofthe course instructor(s); and 

(5) the name of the organization offering or sponsoring the 
course. 

(b) All records, reports and certificates relative to continuing 
education hours must be maintained by the licensee for at least three 
years and shall be produced upon request of the Board or its 
authorized agent 

(c) Dental hygienists may receive a maximum of four hours credit 
per year for continuing education when engaged in the following: 

(1) service on a fiill-time basis on the faculty of an 
educational institution with direct involvement in 
education, training, or research in dental or dental 
auxiliary programs; or 

(2) affiliation with a federal, state or county government 
agency whose operation is directly related to dentistry or 
dental auxiliaries. 

Verification of credit hours shall be maintained in the manner 
specified in this Rule. 

(d) Evidence of service or affiliation with an agency as specified 
in Paragraph (c) of this Rule shall be in the form of verification of 
affiliation or employment which is documented by a director or an 
official acting in a supervisory capacity. 

Authority G.S. 90-225.1. 

.0105 PENALTY/NON-COMPLIANCE/CONTINUING 
EDUCATION REQUIREMENT 

If the applicant for a renewal certificate fails to provide proof of 
completion of reported continuing education hours as required by 
Rules :e0e2 .0102 and :eee4 .0104 of this Subchapter, the Board 



(2) 

(3) 
(4) 



may reftise to issue a renewal certificate until such time as the 
licensee completes the required hours of education and meets all 
other qualifications for renewal. Should the applicant fail to meet 
the qualifications for renewal, including completing the required 
hours of continuing education, by March 31". the license becomes 
void and must be reinstated. If the applicant applies for credit for 
continuing education hours and fails to provide the required 
documentation upon request, the Board may refiise to issue a 
certificate of renewal until such time as the applicant meets the 
qualifications for credit. Should the applicant fail to provide the 
required documentation by March 3 1 ". the license becomes void and 
must be reinstated. 

Authority G.S. 90-225.1; 90-227. 

SUBCHAPTER 16M - FEES PAYABLE 

SECTION .0100 - FEES 

.0102 DENTAL HYGIENISTS 

(a) The following fees shall be payable to the Board: 

( 1 ) Application for examination $ 1 25 .00 

Reinstatement of license after retirement fi-om practice in 
this State $60.00 

Application for provisional licensure $60.00 

Certificate to a resident dental hygienist desiring to 
change to another state or territory $25.00 

(b) — The fee payable t o tlie Board fo r each den t al hygienis t 
r enewal certificate shall be annually Fixed by tlie Board. Each year 
t he Boa r d shall give written notice of tlie amoun t of said r enewal fee 
to each den t al hygienis t licensed to practice in tliis state by mailing 
such notice no late r titan Novembe r 30 t o tlie las t address of r ecord 
for each such den t al hygie n ist. This r enewal fee shall no t exceed 
s i x t y do lla r s ($ 6 0.00). 

(b) Each dental hygienist renewing his or her license to practice 
dental hygiene in North Carolina shall be assessed a fee of fifteen 
dollars ($15.00). in addition to the annual renewal fee, to be 
contributed to die operation of the Caring Dentist Program. 

Authority G. S 90-232. 

SUBCHAPTER 16R - CONTINUING EDUCATION 
REQUIREMENTS: DENTISTS 

SECTION .0100 - CONTINUING EDUCATION 

.0102 APPROVED COURSES AND SPONSORS 

(a) Courses allowed to satisfy this requirement must be directiy 
related to clinical patient cai ^e and shall includ e a t l e as t on e c o ui - s e 
in CPR ev er y t wo y e ars, care. Hours spent reviewing dental 
journals, publications or videos shall not count toward fiilfilling the 
continuing education r e quii ' em e nt. requirement, with the exception 
of home study courses as described in .0101 of this Subchapter. 

(b) Approved continuing education course sponsors include: 
(1) those recognized by the Continuing Education 

Recognition Program Of the American Dental 
Association; 



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Aprils, 2000 



1698 



PROPOSED RULES 



(2) the Academy of General Dentistry, 

(3) North Carolina Area Health Education Centers; 

(4) educational institutions with dental dental, or dental 
hygiene or dental assisting schools or departments; and 

(5) national, state or local societies or assoc i atio n s. 
associations; and 

£6} local, state or federal governmental entities. 

Authority G.S. 90-31.1. 

.0103 REPORTING OF CONTEVUTNG EDUCATION 

(a) The number of hours completed shall be indicated on the 
renewal application form submitted to the Board and confirmed by 
the dentist's signature. Upon request by the Board or its authorized 
agent, the dentist shall provide official documentation of attendance 
at courses indicated. Such documentation shall be provided by the 
organization offering or sponsoring the course. Such documentation 
Documentation must include: 

(1) the title and a desc r i p tion of the course; tide; 

(2) the number of hours of instruction; 

(3) the date and loca t io n of the course attended; 

(4) the name(s) of the course instructor(s); and 

(5) the name of the organization offering or sponsoring the 
course. 

(b) All records, reports and certificates relative to continuing 
education hours must be maintained by the licensee for at least three 
years and shall be produced upon request of the Board or its 
authorized agent. Evidence of service or affiliation with an agency 
or institution as specified in 21 NCAC 1 6 R .0004 2\ NCAC 
16R.0104 shall be in the form of verification of affiliation or 
employment which is documented by a director or an official acting 
in a supervisory capacity. 

Authority G.S. 90-31.1. 

.0104 EXEMPTION FROM AND CREDIT FOR 
CONTINUING EDUCATION 

(a) Dentists may request exemption fi-om continuing education 
requirements by submitting evidence in writing to the Board of 
retirement or semi-retirement fi-om the practice of dentistry. A 
retired dentist is a dentist who never practices dentistry. A semi- 
retired dentist is a dentist who practices on an occasional basis not 
to exceed 1 00 clock hours in a calendar year. A dentist who can 
demonstrate a disabling condition or extenuating circumstance mav 
request m exemption fi-om continuing education hours during a 
particular period. Written documentation of a disabling condition or 
extenuating circumstance that interferes with the dentist's ability to 
complete the required hours shall be provided to the Board. The 
Board mav grant or denv such requests on a case bv case basis. In 
considering the request the Board may require additional 
documentation substantiating any specified disability or extenuating 
circumstance. Tlie Board will de t ermine, on a c ase by case basis, 
whetlie r a d e n t is t m ay be e xempted fr om tli e requiirment for 
continuing e duca t ion. 

(b) In those instances where continuing education is waived and 
the exempt individual wishes to resume practice, the Board shall 
require continuing education courses in accordance with 21 NCAC 
16R .0001 .0101 when reclassifying the licensee. 



(c) Dentists may receive a maximum of ! hours credit per year 
for continuing education when engaged in any of the following: 

(1) service on a fiill-time basis on the faculty of an 
educational institution with direct involvement in 
education, training, or research in dental or dental 
auxiliary programs; or 

(2) affihation with a federal, state or county government 
agency whose operation is directly related to dentistry or 
dental auxiliaries. 

Verification of credit hours shall be maintained in the maimer 
specified in 21 NCAC 16R .0103. 

Authority G.S. 90-31.1. 

.0105 PENALTY/NON-COMPLIANCE/CONTEVUING 
EDUCATION REQUIREMENTS 

If the applicant for a renewal certificate fails to provide proof of 
completion of reported continuing education hours as required by 
Rules mQ\ .0101 and 70003 .0103 of this Subchapter, the Board 
may refiise to issue a renewal certificate until such time as the 
licensee completes the required hours of education and meets all 
other qualifications for renewal. Should the applicant fail to meet 
the qualifications for renewal, including completing the required 
hours of continuing education, by March 31". the license becomes 
void and must be reinstated. If the applicant applies for credit for or 
exemption from continuing education hours and fails to provide the 
required documentation upon request, the Board shall refiise to issue 
a certificate of renewal until such time as the applicant meets the 
qualifications for exemption or credit. Should the applicant fail to 
provide the required documentation by March 31", then the license 
becomes void and must be reinstated. 

Authority G.S 90-31; 90-31.1. 

SUBCHAPTER 16S - IMPAIRED DENTIST PROGRAM 

SECTION .0100 - GENERAL 

.0101 DEFINITIONS 

The following definitions are apphcable to impaired dentist 
programs established in accordance with G.S. 90^8.2: 

(1) "Board" means the North Carolina State Board of Dental 
Examiners; 

(2) "Impairment" means chemical dependency or mental 
ilhiess; 

(3) "Board of Directors" means individuals comprising the 
oversight panel consisting of representatives fi^om the 
North Carolina Dental Society, the Board, licensed dental 
hygienists. and the UNC School of Dentistry established 
to function as a supervisory body to the Caring Dentist 
Program; 

(4) "Director" means the person designated by the Board of 
Directors to organize and coordinate the activities of the 
Caring Dentist Program; 

(5) Caring Dentist Program" means the program established 
through agreements between the Board and special 
impaired dentist peer review organizations formed by the 
North Carolina Dental Society made up of Dental 



1699 



NORTH CAROLINA REGISTER 



April 3, 2000 



14:19 



PROPOSED RULES 



Society members designated by the Society, the Board, 
a hcensed dental hygienist upon recommendation of the 
dental hygienist member of tiie Board, and the UNC 
School of Dentistry to conduct peer reyiew activities as 
proyided in G.S. 90-48.2(a). 
(6) Caring Dentist Program members" means yolunteer 
Dental Society members selected by the Board of 
Directors from peer review organizations to serve as 
parties to interventions, to direct impaired dentists into 
treatment, and as monitors of those individuals receiving 
treatment. Peer liaisons and volunteers participating in 
programs for impaired dental hygienists shall be dental 
hygienists. 

Authority G.S. 90-48; 90-48.2; 90-48.3. 

.01 02 BOARD AGREEMENTS WITH PEER REVIEW 
ORGA>fIZATIONS 

The Board shall enter into agreements with special impaired 
dentist peer review organizations, pursuant to G.S. 90^8.2, to 
establish the Caring Dentist Program to be supervised by the Board 
of Directors. Such agreements shall provide for: 

( 1 ) investigation, review and evaluation of records, reports, 
complaints, litigation, and other information about the 
practice and practice patterns of licensed dentists and 
dental hygienists as may relate to impaired dentists; 
dentists and dental hygienists; 

(2) identification, interyention, treatment, referral, and follow 
up care of impaired dentis t s; dentists and dental 
hygienists; and 

(3) due process rights for any subject dentist dentist or 
dental hygienist. 

Authority G. S. 90-48; 90-48.2; 90-48.3. 

SECTION .0200 - GUIDELINES FOR PROGRAM 
ELEMENTS 

.0201 RECEIPT AND USE OF INFORMATION OF 
SUSPECTED IMPAIRMENT 

(a) Information concerning suspected impairment may be 
received by the Caring Dentist Program through any of the 
following sources: 

( 1 ) reports of physicians, psychologists or counselors; 

(2) reports from family members, staff or other individuals; 

(3) self-referral; or 

(4) referral by the Board. 

(b) When information of suspected impairment is received, the 
Program shall conduct an investigation and routine inquiries to 
determine the validity of the report 

(c) Dentists and dental hygienists suspected of impairment may 
be required to submit to personal interviews if the investigation and 
inquiries indicate the report of impairment may be valid. 

Authority G.S. 90-48; 90-48.2; 90-48.3. 

.0203 INTERVENTION AND REFERRAL 

(a) Following an investigation, if an impairment is determined to 



exist and confirmed, an intervention shall be conducted using 
specialized techniques designed to assist the dentist or dental 
hygienist in acknowledging responsibility for dealing with the 
impairment The dentist or dental hygienist shall be referred to an 
appropriate treatment source. 

(b) Following an investigation, interyention, treatment or upon 
receipt of a complaint or other information, a peer review 
organization participating in the Caring Dentist Program shall report 
to the Board detailed information about any dentist or dental 
hygienist licensed by the Board, if it is determined that: 

(1) the dentist or dental hygienist constitutes an imminent 
danger to the p ublic o r hiniself, public or himself or 
herself; 

(2) the dentist or dental hygienist refiises to cooperate with 
the program, refiises to submit to treatment or is still 
impaired after treatment and exhibits professional 
incompetence; or 

(3) it reasonably appears that there are other grounds for 
disciplinary action. 

(c) Program members may consult with medical professionals 
and treatment sources as necessary in carrying out the Program's 
directives. 

(d) Interventions shall be arranged and conducted as 
expeditiously as possible. When interventions are conducted as a 
direct result of a Board- initiated referral, a Board representative may 
be present 

(e) Treatment sources shall be evaluated and determined 
applicable before an individual is referred for treatment and any 
treatment contracts or aftercare agreements shall be documented and 
recorded by the Program. 

Authority G.S 90-48; 90-48.2; 90-48.3. 

.0205 MONITORING REHABILITATION AND 
PERFORMANCE AFTER TREATMENT 

(a) Program members shall monitor dentists and dental hygienists 
following treatment. Testing for impairment shall be conducted until 
rehabilitation has been accomphshed. 

(b) Treatment sources shall submit reports to the Director 
concerning a dentist's or dental hygienist's rehabilitation and 
performance. 

(c) Impaired dentists and dental hygienists shall submit to 
periodic personal interviews before the Director or Program 
members designated by the Director; or, for those referred to the 
Program by the Board, before the Board's agents. The frequency of 
personal interviews shall be determined by the dentist's or dental 
hygienist's ability to accomplish rehabilitation and adequately 
perform after treatment 

(d) Complete records shall be maintained by the Program on all 
dentists and dental hygienists reporting for assistance, treatment or 
monitoring and such records shall remain confidential in accordance 
with G.S. 90-48.2(e). 

(e) The Program shall maintain statistical information regarding 
impairment to be reported to the Board periodically, but no less than 
once a year. 

(f) The Program shall compile and report information periodically 
to the Board regarding investigations, reports, complaints, 
intervention, treatment referral, rehabilitation and follow up care of 



14:19 



NORTH CAROLINA REGISTER 



April 3, 2000 



1700 



PROPOSED RULES 



impaired den t ists, dentists and dental hygienists. Such reports shall 
not identify the subject dentist or dental hygienist unless the dentist 
or dental hygienist was referred by the Board or a determination 
under Rule .0203(b) of this Section has been made. 

(g) — An audi t of the Ca r ing De nti s t P r og r am funds shall be 
conduc t ed in conjunc t ion with the Board's annual audit 

Authority G.S. 90-48; 90-48.2. 

SUBCHAPTER 16W - PUBLIC HEALTH HYGIENISTS 

SECTION .0100 - PUBLIC HEALTH HYGIENISTS 

.0101 DIRECTION DEFINED 

Pursuant to G.S. QO-ZSSCa). a public health hygienist may perform 
clinical procedures under the direction of a licensed dentist who is 
employed by a State government dental public health program or a 
local health department as a public health dentist. The specific 
clinical procedures delegated to the hygienist must be completed, in 
accordance with a written order from the dentist within 60 days of 
the dentist's in-person evaluation of Ae patient The dentist's 
evaluation of the patient shall include a complete oral examination, 
thorough health history and diagnosis of the patient's condition. 

Authority G.S. 90-223; 90-233(a). 

.0102 TRAINING FOR PUBLIC HEALTH HYGIENISTS 

(a) Prior to performing clinical procedures pursuant to G.S. 90- 
233(a) under the direction of a duly licensed dentist a public health 
hygienist must have: 

(1) five years of experience in clinical dental hygiene: 



(2) CPR certification, updated annually; 

(3) six hours of continuing education in medical emergencies 
each year; and 

(4) such other training as may be required by the Dental 
Health Section of the Department of Health and Human 
Services. 

(b) For purposes of Ais Rule, a minimum of 4000 hours 
performing primarily prophylaxis or periodontal debridement under 
the supervision of a duly licensed dentist shall be equivalent to five 
years experience in clinical dental hygiene. 

Authority G.S. 90-223; 90-233(a). 

.0103 TRAINING FOR PUBLIC HEALTH HYGIENISTS 
PERFORMING PREVENTIVE PROCEDURES 

(a) Public health hygienists who provide only education and 
preventive procedures such as application of fluorides, fluoride 
varnishes and sealants shall be subject to the training provisions set 
out in Paragraph (b) of this Rule instead of the training provisions 
required by 21 NCAC 16W .0102. 

(b) A public health hygienist may perform preventive clinical 
procedures such as application of fluoride, fluoride varnishes and 
sealants under the direction of a duly licensed pubUc health dentist 
if the hygienist: 

(1) maintains CPR certification; and 

(2) completes such other training as may be required by the 
Dental Health Section of the Department of Health and 
Human Services. 

Authority G.S 90-223; 90-233(a). 



1701 



NORTH CAROLINA REGISTER 



April 3, 2000 



14:19 



TEMPORAR Y R ULES 



This Section includes temporary rules reviewed by the Codifier of Rules and entered in the North Carolina Administrative Code and 
includes, from time to time, a listing of temporary rules that have expired. SeeG.S. 150B-21.1 and 26 NCAC 2C .0500 for adoption 
and filing requirements. Pursuant to G.S. 150B-2 1.1(e), publication of a temporary rule in the North Carolina Register serves as a 
notice of rule-making proceedings unless this notice has been previously published by the agency. 



TITLE 10 - DEPARTMENT OF HEALTH AND 
HUMAN SERVICES 

Rule-maldiig Agency: Social Services Commission 

Rule Citation: lONCAC 29C.0102-.0103, .0203-.0204 

Effective Date: March 13, 2000 

Findings Reviewed and Approved by: Julian Mann 

Authority for the rule-making: G.S 108A-25; 143B-153 

Reason for Proposed Action: 21 NCAC 29C .0102-.0103 - 

Current payment levels are not adequate to meet the needs of 
households with a heating or cooling-related crisis. The costs of 
heating fuel and electricity have increased over the years such that 
the payment level does not alleviate the crisis. The recent increase 
in fuel oil prices and the snowstorm havefiirther necessitated the 
need to examine the income limits and the payment level for this 
Program. The Division of Social Services proposes to amend the 
rules in order to allow the county departments of social services to 
provide increased cussistance for energy related crisis situations. 
This will ensure households that were effected by recent cold 
weather and increased fuel prices are appropriately served. The 
Division of Social Services proposes to amend the rules to allow the 
county departments of social services to serve households up to 
150% of the non-farm poverty income guidelines and increase the 
maximum payment level from Two Hundred Dollars ($200.00) to 
Three Hundred Dollars ($300. 00) in a state fiscal year, unless 
emergency contingency funds are released and then an additional 
payment up to Three Hundred Dollars ($300. 00) may be authorized. 
21 NCAC 29C.0203-.0204 - County departments of social services 
in the hurricane affected counties report a higher need for 
assistance than the current rules allow. Families continue to reside 
in temporary housing, and repair and replacement of heating 
equipment is more costly than first anticipated. Also, families 
remain on waiting lists for home repair due to the high demand on 
conti-actors. The increase infiiel oil prices and recent cold weather 
have created additional needs in these counties. The Division of 
Social Services proposed to amend the rules in order to allow the 
county departments of social services the fiexibility they need to 
serve families beyond June 30, 2000. The extension of the rules to 
June 30, 2001 will ensure that energy needs are met with these 
funds and the potential loss of much needed federal funds is 
minimized. Funds obligated by September 30, 2000, will be 
available to the county in the next federal fiscal year; therefore 
counties will have the opportunity to spend these funds into next 
year to address the ongoing needs for their citizens. 

Comment Procedures: If you wish to make comments please 



contact Ms. Shamese Ransome, APA Coordinator, Division of 
Social Services, 2401 Mail Service Center, Raleigh, NC 27699- 
2401; (919) 733-3055. Verbal comments may be presented at the 
public hearing. Written comments must be received by Ms. 
Ransome not later than May 3, 2000. 

CHAPTER 29 - INCOME MAINTENANCE: GENERAL 

SUBCHAPTER 29C - CRISIS INTERVENTION 
PROGRAM 

SECTION .0100 - CRISIS INTERVENTION PROGRAM 

.0102 ELIGIBILITY REQUIREMENTS 

A household must meet the following requirements to be eligible 
for the Crisis Intervention Program: 

(1) Income: A household must have income at or below 446 
150 percent of the current non-farm poverty income 
guidelines. The rules in 10 NCAC 29B .0003 will 
govern for the definition and computation of income. 

(2) Crisis: A household must be in a heating or cooling 
related crisis. A household is in a crisis if it is 
experiencing or is in danger of experiencing a life 
threatening or health-related emergency and sufficient, 
timely and appropriate assistance is net available from 
any other source. 

(3) Citizenship: Individuals who are illegal aliens are not 
eligible for the Crisis Intervention Program. 

History Note: Filed as a Temporary Regulation Eff. November 

24, 1981, for a period of 38 Days to Expire on January 1, 1982; 

Authority G.S 108A-25; 143B-153; 150B-13; 42 U.S.C. 82621(a); 

8622(2); 8624(b); P.L 93-66; P.L. 93-233; P.L. 96-265; 

Eff. January 1, 1982; 

Amended Eff. October 1, 1990; August 1. 1985; 

Temporary Amendment Eff. March 13, 2000. 

.0103 BENEHT LEVELS 

The maximum payment to a household is two three hundred 
dollars ($200.00) ($300.00) in a state fiscal year. Except, when the 
federal government releases emergency contingency fimds for 
severe weather conditions an additional payment up to two three 
hundred dollars ($200.00) ($300.00) may be authorized. Payments 
may vary based upon the severity of the crisis and the services 
needed. 

History Note: Filed as a Temporary Regulation Eff. November 

24, 1981, for a period of 38 Days to Expire on January 1, 1982; 

Authority G.S 108A-25; 143B-153; 

Eff. January 1, 1982; 

Amended Eff. March 1, 1992; August 1, 1985; 



14:19 



NORTH CAROLINA REGISTER 



April 3, 2000 



1702 



TEMPORAR Y R ULES 



Temporary Amendment Eff. March 13. 2000. 

SECTION .0200 - MODIFIED CRISIS INTERVENTION 
PROGRAM 

.0203 BENEFIT LEVELS 

Payments may vary based upon the severity of the crisis and the 
services needed. The maximxim payment to a household is as 
follows: 

(1) Utility Payments: Maximum payment of two three 
hundred dollars ($200) ($300) per application not to 
exceed six nine hundred dollars ($ 6 00) ($900) over the 
state fiscal year. 

(2) Temporary Shelter: Maximum of ftrar eight hundred 
dollars ($400) ($800) per month with a three six month 
maximum over the state fiscal year. 

(3) Home Repair/Appliance Replacement or Repair: 
Maximum of two thousand five hundred dollars five 
thousand dollars ($2,500) ($5,000) over the state fiscal 
year. 

(4) Miscellaneous: Maximum of two four hundred dollars 
($200) ($400) over the state fiscal year. 

History Note: Authority G.S. 108A-25; 143B-153: S.L. 1999-463; 

Temporary Adoption Eff. October 13, 1999 to Expire on June 30, 

2000; 

Temporary Amendment Eff. March 13, 2000 to Expire on June 30, 

2001. 

.0204 METHOD OF PAYMENT 

Methods of payment include direct payments to recipients, fuel 
payments on behalf of recipients, provision of in-kind services or 
temporary shelter and minor home repairs. The maximum direct 
payment to recipients is two four hundred dollars ($200). ($400). 

History Note: Authority G.S. 108A-25; 143B-153; S.L. 1999-463; 

Temporary Adoption Eff. October 13, 1999 to Expire on June 30, 

2000; 

Temporary Amendment Eff. March 13. 2000 to Expire on June 30, 

2001. 



TITLE ISA - DEPARTMENT OF ENVIRONMENT 
AND NATURAL RESOURCES 

Rule-making Agency: North Carolina Wildlife Resources 
Commission 

Rule Citation: ISA NCAC 1 OF. 0332, .0353 

Effective Date: April 1, 2000 

Findings Reviewed and Approved by: Beecher R. Gray 

Authority for the rule-making: G.S. 75A-3; 75A-15 

Reason for Proposed Action: 



ISA NCAC lOF .0332 - The Alexander County Board of 
Commissioners initiated the no-wake zone pursuant to G.S. 7SA-1S, 
to protect public safety in the areas by restricting vessel speed. 
ISA NCAC lOF .03S3 - The Mountain Island Lake Marine 
Commission initiated the no-wake zone pursuant to G.S. 75A-15, to 
protect public safety in the areas by restricting vessel speed. 

Comment Procedures: 

ISA NCAC lOF .0332 - The North Carolina Wildlife Resources 
Commission has the authority to adopt temporary rules pursuant to 
G.S. lS0B-2Ll(al). This temporary rule is adopted following the 
public hearing and public comment period established for 
permanent rule adoption. A public hearing was held on January 
20, 2000 for the permanent rule and the record of hearing for public 
comment was closed on February 3, 2000. The submission for 
permanent rule is on file with the Rules Review Commission. 
IS NCAC lOF .03S3 - The North Carolina Wildlife Resources 
Commission has the authority to adopt temporary rules pursuant to 
G.S. 150B-21.1(al). This temporary rule is adopted following the 
public hearing and public comment period established for 
permanent rule adoption. A public hearing was held on January 6, 
2000 for the permanent rule and the record of hearing for public 
comment was closed on January 14, 2000. The submission for 
permanent rule is on file with the Rules Review Commission. 

CHAPTER 10 - WILDLIFE RESOURCES COMMISSION 

SUBCHAPTER lOF - MOTOR BOATS AND WATER 
SAFETY 

SECTION .0300 - LOCAL WATER SAFETY 
REGULATIONS 

.0332 ALEXANDER COUNTY 

(a) Regulated Area. This Rule applies only to those waters of 
Lake Hickory set out in this Rule which are located in Alexander 
County. 

( 1 ) the waters beginning 50 yards fi^om the southeast end of 
the marina and ending at Rink Dam; 

(2) the waters within 50 yards of the Taylorsville Beach 
Mai - jna; Marina; and 

(3) the waters within 50 yards of the Bethlehem Marina. 

(b) Speed Limit. No person shall operate any motorboat or vessel 
at greater than no-wake speed within 50 yards of any public boat 
launching ramp or while on the waters of any regulated areas 
designated in Paragraph (a) of this Rule. 

(c) Placement and Maintenance of Markers. The Board of 
Commissioners of Alexander County is designated a suitable agency 
for placement and maintenance of the markers implementing this 
Rule, subject to the approval of the United States Coast Guard and 
the United States Army Corps of Engineers, if applicable. 

History Note: Authority G.S. 75A-3; 75A-15; 
Eff. March 25, 1979; 

Amended Eff. February 1, 1995; February 1, 1987; 
Temporary Amendment Eff. April 1. 2000. 



1703 



NORTH CAROLINA REGISTER 



April 3, 2000 



14:19 



TEMPORAR Y RULES 



.0353 MOUNTAIN ISLAND LAKE: MECKLENBURG, 
GASTON AND LINCOLN COUNTIES 

(a) Regulated Area. This Rule applies to Mountain Island Lake 
which is located in Mecklenburg, Gaston and Lincob counties, the 
cove of Moun t ain Island Lake lying n o rtl i of and adjacent t o t he 
La tt a Plan t a t ion Pa r k and adjacen t t o the Mecklenburg Coun t y Pa r k 
a n d Duke Powe r Company pro p e rt ies. 

(1) Latta Plantation Park ; The cove Iving north of and 
adjacent to the Latta Plantation Park and adjacent to the 
Mecklenburg County Park and Duke Power Company 
properties. 

(2) Duck Cove - The waters of Duck Cove as delineated by 
appropriate markers. Duck Cove is adjacent to 
Mecklenburg County's Cowan's Ford Wildlife Refuge 
and west of the portion of Neck Road that runs through 
Cowan's Ford Wildlife Refuge. 

(3) Nance Cove 

(A) The waters of the southern portion of Nance Cove 
extending north from the back of the cove, at or 
near ShufFletown Landing, up the cove toward the 
main channel of Mountain Island Lake, extending 
to a point that is roughly even with the boundary 
line between Lots 166 and 167 in the Overlook 
subdivision, which lots are just north of the 



m 



Overlook Sv^im & Tennis Club, and where the 
cove is approximately Three Hundred and Sixty- 
Eight feet wide. 
The waters of the westem arm or sub-cove of 



Nance Cove, which lies west of Shadow Cove 

Lane and die northem-most portion of Nance 

Cove Road and east of Haymarket Road. 

(4} North Carolina Highway 1 6 Bridge - An area extending 

approximately 50 yards in aH directions from the NC 

Highway 16 Bridge also known as die Rozelles Ferry 

Bridge. 

(b) Speed Limit. No person shall operate any motorboat or vessel 
at greater than no-wake speed within the regulated area described in 
Paragraph (a) of this Rule. 

(c) Placement and Maintenance of Markers. T li e Boa r d o f 
Co m missione r s of Mecklenbu r g Coun t y Each of the boards of 
Commissioners of the above-named counties is designated a suitable 
agency for placement and maintenance of markers implementing this 
Rule: Rule for regulated areas within their territorial jurisdiction in 
accordance with the Uniform Systera 

History Note: Authority G.S. 75A-3; 75A-15; 

Eff. May 1. 1988; 

Temporary Amendment Ejf. April 1, 2000. 



14:19 



NORTH CAROLINA REGISTER 



April 3, 2000 



1704 



APPROVED RULES 



This Section includes the Register Notice citation to Rules approved by the Rules Review Commission (RRC) at its meeting of January 
20, 2000 pursuant to G.S. 150B-2 1.1 7 (a)(1) and reported to the Joint Legislative Administrative Procedure Oversight Committee 
pursuantto G.S. 150B-21.16. Thefull text ofrules are published below when the rules have been approved by RRC in a form different 
from that originally noticed in the Register or when no notice was required to be published in the Register. The rules published in 
fill text are identified by an * in the listing of approved rules. Statutory Reference: G.S. 150B-21. 1 7. 

These rules, unless otherwise noted, will become effective on the 31st legislative day of the 2000 Session of the General Assembly or 
a later date if specified by the agency unless a bill is introduced before the 31st legislative day that specifically disapproves the rule. 
If a bill to disapprove a rule is not ratified, the rule will become effective either on the day the bill receives an unfavorable final action 
or the day the General Assembly adjourns. Statutory reference: G.S. 150B-21.3. 



APPROVED RULE CITATION 



REGISTER CITATION TO THE 
NOTICE OF TEXT 



2 


NCAC 


S2B 


.0207* 


2 


NCAC 


S2B 


.0302* 


2 


NCAC 


52E 


.0209* 


7 


NCAC 


4S 


.0103 


10 


NCAC 


3R 


.0212* 


11 


NCAC 


6B 


.0201-.020S 


11 


NCAC 


63 


.0301 -.0304 


11 


NCAC 


6B 


.0401 -.0405 


11 


NCAC 


12 


.0308* 


11 


NCAC 


13 


.0406* 


15A 


NCAC 


IJ 


.0402* 


15A 


NCAC 


IJ 


.0S04* 


15A 


NCAC 


IJ 


.0604* 


15A 


NCAC 


IJ 


.0701* 


15A 


NCAC 


IJ 


.0903* 


15A 


NCAC 


IL 


.0S03* 


15A 


NCAC 


IL 


.0604* 


15A 


NCAC 


IL 


.0701* 


15A 


NCAC 


IL 


.1003* 


15A 


NCAC 


2B 


.0233* 


15A 


NCAC 


2B 


.0259* 


15A 


NCAC 


2B 


.0303-.0304 


15A 


NCAC 


2B 


.0306 


15A 


NCAC 


2B 


.0308 


15A 


NCAC 


2B 


.0310 


15A 


NCAC 


2B 


.0317 


15A 


NCAC 


2D 


.0523 


15A 


NCAC 


2D 


.1202-. 1206* 


15A 


NCAC 


2D 


.1208* 


ISA 


NCAC 


2D 


.1209 


ISA 


NCAC 


2Q 


.0102* 


ISA 


NCAC 


20 


.0202 


ISA 


NCAC 


20 


.0306 


ISA 


NCAC 


20 


.0502-.0503 


ISA 


NCAC 


20 


.0507 


ISA 


NCAC 


31 


.0106* 


ISA 


NCAC 


30 


.0101* 


ISA 


NCAC 


30 


.0404* 


ISA 


NCAC 


7H 


.0209* 


ISA 


NCAC 


7H 


.1103 


ISA 


NCAC 


7H 


.1203 


ISA 


NCAC 


7H 


.1303 


ISA 


NCAC 


7H 


.1403 



14:03 NCR 128 

14:03 NCR 129 

14:03 NCR 130 

14:09 NCR 657 

not required G.S. 1 50B-2 1 .5(a)(3) Eff. February 1 , 2000 

14:10 NCR 752 

14:10 NCR 752 

14:10 NCR 752 

not required G.S. 150B-2 1.5(b)(1) Eff. July 1, 2000 

not required G.S. 150B-21.5(bXl) Eff. July 1, 2000 

13:22 NCR 1830 

13:22 NCR 1831 

13:22 NCR 1831 

13:22 NCR 1832 

13:22 NCR 1835 

13:22 NCR 1837 

13:22 NCR 1838 

13:22 NCR 1838 

13:22 NCR 1841 

14:04 NCR 287 

14:03 NCR 171 

13:20 NCR 1727 

13:20 NCR 1731 & 13:23 NCR 1929 

13:20 NCR 1732 

13:23 NCR 1935 

13:23 NCR 1935 

14:03 NCR 187 

14:03 NCR 189 

14:03 NCR 211 

14:03 NCR 215 

14:03 NCR 216 

14:07 NCR 532 

14:03 NCR 220 

14:07 NCR 532 

14:07 NCR 532 

14:06 NCR 448 

14:06 NCR 457 

14:06 NCR 467 

13:23 NCR 1938 

14:09 NCR 662 

14:09 NCR 662 

14:09 NCR 662 

14:09 NCR 662 



1705 



NORTH CAROLINA REGISTER 



April 3, 2000 



14:19 



APPROVED RULES 



15A 


NCAC 


7H 


.1503 


15A 


NCAC 


7H 


.1603 


15A 


NCAC 


7H 


.1803 


15A 


NCAC 


7H 


.1903 


15A 


NCAC 


7H 


.2003 


15A 


NCAC 


7H 


.2103 


15A 


NCAC 


7H 


.2203 


15A 


NCAC 


7H 


.2303 


15A 


NCAC 


7J 


.0204* 


15A 


NCAC 


7J 


.0404-.0405* 


15A 


NCAC 


7M 


.0401 -.0402 


15A 


NCAC 


16A 


.1104* 


18 


NCAC 


6 


.1212 


18 


NCAC 


6 


.1304 


18 


NCAC 


6 


.1502 


21 


NCAC 


16G 


.0101* 


21 


NCAC 


16G 


.0102 


21 


NCAC 


16G 


.0103* 


21 


NCAC 


16H 


.0103-.0104* 


21 


NCAC 


16H 


.0201 -.0203* 


21 


NCAC 


16H 


.0204 


21 


NCAC 


16H 


.0205* 


21 


NCAC 


16Q 


.0201 -.0202* 


21 


NCAC 


16Q 


.0301-.0302* 


21 


NCAC 


16V 


.0101-.0102* 


21 


NCAC 


48F 


.0102 


23 


NCAC 


2B 


.0104 


23 


NCAC 


2C 


.0503-.0505* 



14:09 NCR 662 
14:09 NCR 662 
14:09 NCR 662 
14:09 NCR 663 
14:09 NCR 663 
14:09 NCR 663 
14:09 NCR 663 
14:09 NCR 663 
14:09 NCR 663 
14:09 NCR 664 
14:09 NCR 667 
14:01 NCR 12 
14:08 NCR 645 
14:08 NCR 645 
14:08 NCR 645 
13:05 NCR 1218 
13:15 NCR 1219 
13:15 NCR 1219 
13:15 NCR 1219 
13:15 NCR 1220 
13:15 NCR 1221 
13:15 NCR 1221 
13:15 NCR 1221 
13:15 NCR 1222 
13:15 NCR 1222 
14:10 NCR 771 
13:22 NCR 1849 
13:22 NCR 1850 



TITLE 2 - DEPARTMENT OF AGRICULTURE 

CHAPTER 52 - VETERINARY DIVISION 

SUBCHAPTER 52B - ANIMAL DISEASE 

SECTION .0200 - ADMISSION OF LIVESTOCK TO 
NORTH CAROLINA 

.0207 IMPORTATION REQUIREMENTS: SWINE 

(a) All swine imported into the state, except by special permit or 
for immediate slaughter, shall be accompanied by an official health 
certificate issued by a state, federal, or accredited veterinarian stating 
that they are free from any signs of an infectious or communicable 
disease and are not known to have been exposed to same. The 
health certificate shall contain the ear tag or tattoo number of each 
animal. Swine imported for feeding or breeding purposes shall be 
moved in clean and disinfected trucks or other conveyances. 
"Accredited veterinarian" means a veterinarian accredited pursuant 
to Title 9, Part 161 of the Code of Federal Regulations. 

(b) Breeding swine and all other swine being shipped to a 
breeding swine premise shall originate from a "'^''alidated 
Brucellosis-Free" herd or a "Validated Brucellosis-Free" State and 
shall originate from a "Qualified Pseudorabies-Negative" herd, 
Qualified-Negative Gene-Altered Vaccinated Herd (QNV) or 
Pseudorabies Stage FV or V (Free) State. Breeding swine and all 
other swine being shipped to a breeding swine premise originating 
from Stage 11, 11/111 or 111 areas or states must also be isolated and 



test negative to a statistical 95/5 sample test using a pseudorabies 
serological test approved pursuant to Title 9, Part 85.1 of the Code 
of Federal Regulations between 30 and 60 days after arrival and 
before being added to the herd. 

(c) All feeder svraie imported into the state shall be accompanied 
by an official health certificate issued by a state, federal or 
accredited veterinarian stating or showing that: 

( 1 ) A permit for entry was obtained within 30 days prior to 
entry for feeder pigs that originate from a Stage II, Il/UI, 
III state or area and that they shall be quarantined until 
slaughtered; or 

(2) The swine originated from a pseudorabies-free area as 
determined by the State Veterinarian; or 

(3) The swine originated from a Qualified Pseudorabies 
Negative Herd; or 

(4) The swine originated from a monitored feeder pig herd; 
or 

(5) Swine from Stage II, II/III, lU areas or states originated 
from a Qualified Negative herd or a pseudorabies 
monitored herd or tested negative on a statistical (95/10) 
test within 30 days prior to shipment. 

(d) Healthy swine for feeding purposes may move directly from 
a farm of origin in a contiguous state on which they have been 
located for not less than 30 days to a livestock market or stockyard 
in North Carolina that has been state-federal approved for handling 
feeder swine, without the health certificate required herein, provided 
such swine are accompanied by proof of the pseudorabies status of 
the herd of origin. Such swine shall be inspected by a state or 



14:19 



NORTH CAROLINA REGISTER 



April 3, 2000 



1706 



APPROVED RULES 



federal inspector or approved accredited veterinarian prior to sale at 
the market. 

(e) Healthy swine may be shipped into the state for immediate 
slaughter without a health certificate provided they go directly to a 
slaughtering establishment under State or Federal inspection, or to 
a state-federal approved livestock market or stockyard for sale to a 
slaughtering establishment under State or Federal inspection for 
immediate slaughter only. 

(f) Sporting swine: 

( 1 ) For purposes of this Rule: 

(A) "Sporting swine" means any domestic or feral 
swine intended for hunting purposes and includes 
the progeny of these swine whether or not the 
progeny are intended for hunting purposes; 

(B) "Feral swine" means any swine that have Uved 
any part of its Ufe free rociming. 

(2) No person shall import sporting swine into North 
Carolina unless: 

(A) The swine have not been fed garbage within their 
lifetime; and the herd of origin is validated 
brucellosis free and qualified pseudorabies 
negative; and 

(B) The swine have not been members of a herd of 
swine known to be infected with brucellosis or 
pseudorabies within the previous 12 months; and 

(C) The individual animals six months of age or over 
have a negative brucellosis and pseudorabies test 
within 30 days of movement; and 

(D) The swine have not been a part of a feral swine 
population or been exposed to swine captured 
from a feral swine population within the previous 
12 months; and 

(E) The swine are accompanied by an official health 
certificate or certificate of veterinary inspection 
identifying each animal by ear tag, breed, age, 
sex, the state of origin, and certifying that the 
swine meet the import requirements of North 
Carolina. 

Note: Violation of this Rule is a Class 2 misdemeanor under G.S. 
106-307.6. 

Authority G.S. 106-307.5; 106-316.1; 106-317; 106-318; 
Amended Effi July 1, 2000. 

SECTION .0300 - BRUCELLOSIS REGULATIONS 

.0302 BRUCELLOSIS REQUIREMENTS FOR SALE OF 
CATTLE AND SWINE 

(a) All cattle offered for public sale must test negative for 
brucellosis within 30 days preceding the date of sale except those 
cattle listed as follows: 

( 1 ) cattle sold for immediate slaughter; 

(2) native heifers and bulls less than 1 8 months of age; 

(3) steers and spayed heifers; 

(4) officially brucellosis vaccinated heifers of the dairy 
breeds under 20 months of age (provided that all 
officially brucellosis vaccinated heifers of any breed that 
are parturient or post parturient must be tested and 



negative for brucellosis); 

(5) officially brucellosis vaccinated heifers of the beef 
breeds under 24 months of age (provided that all 
officially brucellosis vaccinated heifers of any breed that 
are parturient or post parturient must be tested and 
negative for brucellosis); 

(6) cattle originating directly from a certified 
brucellosis-free herd or state; or 

(7) heifers under 12 months of age purchased for feeding 
purposes; provided, however, that if the State 
Veterinarian determines that the heifers originated from 
a herd of unknown brucellosis status, buyers of feeder 
heifers under 12 months of age may be required, before 
they remove such cattle from place of purchase, to sign 
a statement of intent to feed those cattle not tested for 
brucellosis in isolation from breeding animals. Willfiil 
failure of a buyer of such cattle to sign a statement of 
intent when requested by the State Veterinarian or his 
authorized representative or willful failure to conply 
with such a signed statement of intent is a violation of 
this Section. 

(b) All swine sold or offered for sale for breeding purposes must 
originate directly from a vahdated brucellosis-free herd unless they 
originate from a state classified as swine-brucellosis free. 

(c) Sporting swine: 

(1) For the purpose of this Rule: 

(A) "Sporting swine" means any domestic or feral 
swine intended for hunting purposes and includes 
the progeny of these swine whether or not the 
progeny are intended for hunting purposes; 

(B) "Feral swine" means any swine that have lived 
any part of its life free roaming. 

(2) All sporting swine sold or offered for sale must originate 
directly from a validated brucellosis-free herd. 

Authority G.S. 106-389; 106-396; 
Amended Eff. July 1. 2000. 

SUBCHAPTER 52E - MARKETING OF LIVESTOCK 

SECTION .0200 - PUBLIC LIVESTOCK MARKET 
REGULATIONS 

.0209 CERTIFICATES: CATTLE AND SWINE 
REMOVED FOR NON-SLAUGHTER 

(a) No cattle except those for immediate slaughter shall be 
removed from, a public livestock market unless they are 
accompanied by a certificate issued by a veterinarian accredited 
pursuant to Title 9, Part 1 61 of the Code of Federal Regulations or 
an employee of the veterinary division of the North Carolina 
Department of Agriculture or Animal and Plant Health Inspection 
Service, Veterinary Services, United States Department of 
Agriculture. The certificate shall show that such animals are 
apparently healthy and come directly from a certified 
brucellosis-free herd or state or that eligible cattle listed have passed 
an approved test for brucellosis within 30 days prior to sale. 
(Steers, spayed heifers, and native cattle under 1 8 months of age are 
exempt from this requirement.) Every animal shall be identified by 



7707 



NORTH CAROLINA REGISTER 



April 3, 2000 



14:19 



APPROVED RULES 



a numbered ear tag or tattoo in accordance with Title 9, Part 78. 1 of 
the Code of Federal Regulations. No brucellosis test shall be 
required on official brucellosis vaccinates less than 20 months of age 
of the dairy breeds and less than 24 months of age of the beef 
breeds, provided that all parturient or post parturient cattle regardless 
of age shall be tested for brucellosis. Official calfhood vaccinates 
must be identified by ear tag, tattoo or official vaccination certificate. 

(b) Swine. No swine except those for immediate slaughter shall 
be removed from any public livestock market unless they are 
accompanied by a certificate issued by a veterinarian accredited 
pursuant to Title 9, Part 161 of the Code of Federal Regulations or 
employee of the veterinary division, North Carolina Department of 
Agriculture or Animal and Plant Health Inspection Service, 
Veterinary Services, United States Department of Agriculture. The 
certificate shall show that swine covered by the certificate are 
apparently healthy and come directly from a validated 
brucellosis-fi"ee herd Each animal shall be identified with an 
official ear tag, tattoo or other methods approved by the State 
Veterinarian. 

(c) Record Kept A copy of all health certificates issued on cattle 
and svme sold in a public livestock market shall be kept on file as 
a part of the livestock market records for at least one year. 

(d) Exemptions. The Commissioner of Agriculture exempts 
fi'om the requirement for official health certificates all breed 
sponsored sales, quality feeder pig sales where animals are not sold 
for movement to other states, and those sponsored wholly or in part 
by an agency of state government. 

Authority G.S. 106-416; 
Amended Eff. July 1, 2000. 



TITLE 10 - DEPARTMENT OF HEALTH AND HUMAN 
SERVICES 

CHAPTER 3 - FACILITY SERVICES 



than the services which are included in research; 

(2) substantially change the bed capacity of the facility; or 

(3) substantially change the medical or other patient care 
services of the facility. 

(c) The notice required by G.S. 131E-179 shall be given on a 
form "Notice of Proposed Research Activity." This form may be 
obtained by contacting the agency at the address and telephone 
number stated in Rule .0111 of this Subchapter. 

(d) The notice must be completed and delivered to the agency 
before the new institutional health service is offered or developed. 
The notice is not filed in accordance with this Rule until the notice 
is deemed complete. 

(e) The agency shall promptly acknowledge in writing receipt of 
the notice. The notice shall be deemed complete unless the agency, 
within seven days after receipt, mails a letter to the person 
submitting the notice which states that the notice was incomplete 
and specifies what information is necessary to make it complete. As 
soon as the requested iirformation is delivered to the agency, the 
notice shall be deemed complete and filed in accordance with this 
Rule. 

(f) Within 30 days after receipt of a completed notice, the agency 
shall notify the health care facility submitting the notice whether the 
agency has granted the exemption. If the exemption has been 
granted, the health care facility may proceed to offer and develop the 
new institutional health service. If a certificate of need is required, 
the notice and review under this Rule shall be deemed to be in 
compliance with Rule .0303 of this Subchapter. 

(g) Any affected person, as defined in G.S. 131E-188(c), may 
obtain a contested case hearing on a decision of the agency under 
this Rule by following procedures set forth in G.S. 1 508 and G.S. 
131E-188. 

Authority G.S. 131E-177; 131E-179; 

Amended Eff. February 1, 2000; January 1, 1990; November 1, 

1989; February 1, 1986 



SUBCHAPTER 3R - CERTIFICATE OF NEED 
REGULATIONS 

SECTION .0200 - EXEMPTIONS 

.0212 RESEARCH ACTFVITY 

(a) UnderG.S. 13 lE-1 79 a health care facility may apply to the 
agency for an exemption fi-om obtaining a certificate of need for any 
of the following if they are to be used solely for research: 

( 1 ) acquisition of maj or medical equipment; 

(2) the offering of institutional health services; or 

(3) the incurring of the obligation of a capital expenditure. 
If any of the foregoing is used to provide patient care on an 
occasional and irregular basis and not as a part of the research 
program, the agency will not deny any request for an exemption 
solely on that basis. 

(b) The exemption shall be granted if notice is filed in 
accordance with this Rule and if the notice shows that the proposed 
new institutional health service will not: 

(I) affect the charges of the health care facility for the 
provision of medical or other patient care services other 



TITLE 11 - DEPARTMENT OF INSURANCE 

CHAPTER 12 - LIFE AND HEALTH DIVISION 

SECTION .0300 - GENERAL PROVISIONS 

.0308 BANK CREDIT CARD FACILITY AVAILABLE 
FOR PREMIUM PAYMENT 

Authority G.S. 58-61.2; 
Repealed Eff. July 1, 2000. 

CHAPTER 13 - SPECIAL SERVICES DIVISION 

SECTION .0400 - MOTOR CLUBS 

.0406 USE OF CREDIT CARDS PROHIBITED 

Authority G.S 66-49.13(5); 58-61.2; 
Repealed Eff. July 1, 2000. 



14:19 



NORTH CAROLINA REGISTER 



April 3, 2000 



1708 



APPROVED RULES 



TITLE 15A - DEPARTMENT OF ENVmONMENT 
AND NATURAL RESOURCES 

SUBCHAPTER IJ - STATE CLEAN WATER 
REVOLVING LOAN AND GRANT PROGRAM 

SECTION .0400 - CRITERIA FOR EVALUATION OF 
ELIGIBLE APPLICATIONS 

.0402 CRITERIA FOR PLANNING AND WATER 
CONSERVATION 

Maximum value- 80 points: 

( 1 ) An applicant may receive a maximum of 1 5 bonus points 
for meeting the following criteria as applicable: 

(a) An applicant demonstrates it has a continuing I/I 
program in its wastewater sewer maintenance 
program (Wastewater Projects Only) 5 points 

(b) An applicant demonstrates it has a continuing 
water loss reduction program in its water supply 
system program. 

(Water Supply Projects Only) 5 points 

(c) An applicant demonstrates it has a continuing 
program of water conservation education and 
information. 5 points 

(d) An applicant demonstrates it has established a 
water conservation incentive rate structure; 
created incentives for new or replacement 
installation of low flow faucets, shower heads, 
and toilets; or has a water reclamation or reuse 
system. 5 points 

(2) An applicant may receive a maximum of 25 bonus points 
for meeting the following criteria: 

(a) An applicant demonstrates that it has adopted a 
comprehensive land-use plan that meets the 
requirements of G.S. 153 A, Article 18 or G.S. 
160A, Article 19, or applicant is a local 
government unit that is not authorized to adopt a 
comprehensive land-use plan but that is located in 
whole or in part in another local government unit 
that has adopted a comprehensive land-use plan, 
and that the proposed project is consistent with 
the plan. 7 points 

(b) An applicant demonstrates that the 
comprehensive land-use plan exceeds the 
minimum state standards for the protection of 
water resources. 8 points 

(c) An applicant demonstrates that actions have been 
taken toward implementation of the 
comprehensive land-use plan. These actions may 
include the adoption of a zoning ordinance or any 
other measure that results in the implementation 
of the comprehensive land-use plan. 1 points 

(3) An applicant may receive a maximum of 20 bonus points 
for the following criteria: 

(a) An AppUcant has developed a capital 
improvement plan as defmed in Session Laws 



1 998 Chapter 132. 15 points 

(b) Proposed project is consistent with the water 

supply watershed protection requirements of G.S. 

143-214.5. 5 points 

(4) An applicant may receive a maximum of 20 bonus points 

for the following criteria: 

(a) An applicant demonstrates voluntary water 
supply watershed protection activities in excess of 
the minimum requirements of G.S. 143-214.5, or 

15 points 

(b) An applicant demonstrates it has developed a 
wellhead protection program approved by the 
Division of Environmental Health under the 
agency's voluntary "N.C. Wellhead Protection 
Program," or 15 points 

(c) An appUcant demonstrates it has both 
Subparagraphs (1) and (2) of this 
Paragraph. 20 points 

Authority G.S. 159G-I0; 1590-15; 
Effi August 1,2000. 

SECTION .0500 - PRIORITY CRITERIA FOR 
WASTEWATER TREATMENT WORK PROJECS 

.0504 FISCAL RESPONSIBILITY OF THE APPLICANT 

Maximum Value~25 points: 

The value of this Rule will be the sum of the points assigned to 
either Item (1) or (2) of this Rule plus the value assigned to Items 
(3) and (4) of this Rule: 

(1) The applicant has adopted a sewer use ordinance 
approved by the Division of Water Quality which will be 
placed in effect on or before the completion date of the 
proposed project and has established an equitable 
schedule of fees and charges providing that each 
category of users shall pay its proportional part of the 
total cost of the operation and which will provide 
sufficient revenues for the adequate operation, 
maintenance and administration and for reasonable 
expansion of the project, or 6 points 

(2) The applicant has developed a draft sewer use ordinance 
which will be adopted and placed in effect on or before 
the completion date of the proposed project and has 
established an equitable schedule of fees and 
charges providing that each category of users shall pay its 
proportional part of the total cost of the operation 

and which wdll provide sufficient revenues for the 
adequate operation, maintenance and administration and 
for reasonable expansion of the project. 2 points 

(3) The applicant has established by resolution of its 
governing body a capital reserve fiind into which all 
surplus revenues from such charges and fees will be 
placed for the purposes specified in G.S. 159G-9(4). 
(Copy of the resolution must be submitted with 
application. 4 points 

(4) The applicant has followed proper accounting and fiscal 
reporting procedures as evidenced by the applicant's 
most recent report of audit and the applicant is in 



1709 



NORTH CAROLINA REGISTER 



April 3, 2000 



14:19 



APPROVED RULES 



compliance with provisions of the general fiscal control 
laws of the state. 1 5 points 

The Environmental Management Commission may seek the 
comments of the Secretary of the Local Government Commission 
in determining whether to assign values to Items (3) and (4) of this 
Rule. 

Authority G.S. 159G-W; 159G-15; 
Eff. August 1,2000. 

SECTION .0600 - PRIORITY CRITERIA FOR 
WASTEWATER COLLECTION SYSTEM PROJECTS 

.0604 nSCAL RESPONSIBILITY OF THE APPLICANT 

Maximum Value- 25 points: 

The value of this Rule will be the sum of the points assigned to 
either Item ( 1 ) or (2) plus the value assigned to Items (3) and (4) of 
this Rule: 

(1) The applicant has adopted a sewer use ordinance 
approved by the Division of Water Quality which will be 
placed in effect on or before the completion date of the 
proposed project and has established an equitable 
schedule of fees and charges, providing that each 
category of users shall pay its proportional part of the 
total cost of the operation, and which will provide 
sufficient revenues for the adequate operation, 
maintenance and administration and for reasonable 
expansion of the project, or 6 points 

(2) The applicant has developed a draft sewer use ordinance 
which will be adopted and placed in effect on or before 
the completion date of the proposed project and has 
established an equitable schedule of fees and charges, 
providing that each category of users shall pay its 
proportional part of the total cost of the operation and 
which will provide sufficient revenues for the adequate 
operation, maintenance and administration and for 
reasonable expansion of the project. 2 points 

(3) The applicant has established by resolution of the 
governing body a capital reserve ftmd into which all 
surplus revenues from such charges and fees will be 
placed for the purposes specified in G.S. 159G-9(4). 
(Copy of the resolution must be submitted with 
application.) 4 points 

(4) The applicant has followed proper accounting and fiscal 
reporting procedures, as evidenced by the applicant's 
most recent report of audit, and the applicant is in 
compliance with provisions of the general fiscal control 
laws of the state. 1 5 points 

The Division of Environmental Management may seek the 
comments of the Secretary of the Local Government Commission 
in determining whether to assign values to Items (3) and (4) of this 
Rule. 

Authority G.S. 159G-10; 159G-15; 
Eff. August 1,2000. 

SECTION .0700 - PRIORITY CRITERIA FOR WATER 
SUPPLY SYSTEMS PROJECTS 



.0701 PUBLIC NECESSITY: HEALTH: SAFETY AND 
WELFARE 

Maximum Value- 130 points: 

(1) System and Service Area Needs (Select one) - 
(Maximum Points— 20): 

(a) The project is intended to increase the source of 
water to meet existing service area needs or to 
alleviate water shortage problems. 1 2 points 

(b) The project is intended to improve an existing 
system with no increase in the area to 

be served. 12 points 

(c) The project is intended to increase the existing 
area to be served without improvement of the 
existing system. 12 points 

(d) The project is intended to increase the existing 
area to be served and includes improvements to 
the existing system. 1 6 points 

(e) The project is intended to increase the existing 
area to be served and includes improvements to 
the existing system and either is a component of 
or will create a regional water 

supply system. 20 points 

(f) The project is intended to provide for 
construction of a basic system for an area which 
is not presently served by an approved public 
water supply system and service by an existing 
system is not feasible. 20 points 

(2) Public health and compliance points may be awarded to 
a project based on the following criteria. A proposed 
project shall be necessary to facilitate compliance with 
the N.C. Drinking Water Act or the federal Safe 
Drinking Water Act and to alleviate the type of public 
health concern for which points are awarded. A project 
shall receive only points in the highest sub-category for 
which it may qualify: 

(a) Acute/Imminent Health Hazards. 90 points shall 
be awarded to projects that propose to eliminate 
any one or more of the following acute, ongoing 
health hazards to the consumer: 

(i) Projects that address documented nitrate, 
nitrite or fecal coliform MCL violations, 
or contaminant levels in drinking water 
which constitute acute health risks as 
defined in 40 C.F.R 141.32(a)(l)(iii) 
which is incorporated by reference at 1 5 A 
NCAC 18C.1523;or 
(ii) Projects that eliminate any contaminant in 
the public water system that poses an acute 
risk or imminent hazard to public health as 
determined by the State Health Director or 
a health risk assessment from the Division 
of Epidemiology, Department of Health 
and Human Services in accordance with 
G.S. 130A-2(3). 

(b) Immediate Health Hazards. 60 points shall be 
awarded to projects that propose to eliminate any 
one or more of the following immediate health 



14:19 



NORTH CAROLINA REGISTER 



April 3, 2000 



1710 



APPROVED RULES 



hazards to the consumer: 
(i) Projects that address surface water 
treatment technique violations occurring 
for two or more consecutive months; 

(ii) Projects that resolve any microbiological 
MCL problems for a water system with 
three or more microbiological MCL 
violations during the previous 12 months; 

(iii) Projects that propose filtration for a 
surface water source or for a well that is 
determined to be under the direct influence 
of surface water by the Department that 
does not currently have filtration; 

(iv) Projects that address the inability of a 
public water system to inactivate giardia 
and viruses in accordance with 15A 
NCAC18C.2001;or 

(v) Proj ects that address documented recurrent 
water outages or low pressure below the 
requirements of 15A NCAC 18C .0901. 
Only problems that affect human 
consumption of drinking water shall be 
considered for award of points under this 
criteria 

(c) Chronic Health Hazards. 36 points shall be 
awarded to projects that propose to eliminate any 
one or more of the following chronic health 
hazards to the consumer: 

(i) Projects that address exceedances of the 
lead and copper action levels under 1 5 A 
NCAC 18C .1507; 

(ii) Projects that address violations of 
inorganic or organic chemical or 
contaminant MCLs under 15A NCAC 
18C. 1510, .1517, and. 1518; 

(iii) Projects that address violations of 
radiological contamination MCLs under 
15ANCAC 18C .1520 and .1521; or 

(iv) Projects that address a chronic health 
hazard as determined by the State Health 
Director or a health risk assessment from 
the Division of Epidemiology, Department 
of Health and Human Services. 

(d) Potential Health Hazards. 24 points shall be 
awarded to projects that propose to eliminate any 
one or more of following potential health hazards 
to the consumer: 

(i) Projects that address low chlorine 
residuals in the distribution system; 

(ii) Proj ects that address periodic violations of 
an MCL; 

(iii) Projects for line installation or extensions 
to areas with poor water quality or limited 
quantity; 

(iv) Projects to develop new sources of water, 
to augment existing sources, or to expand 
treatment capacity to meet current demand 
when the average daily demand for the 



previous 12 months equals or exceeds the 
available water supply as calculated in 
local water supply plans prepared in 
accordance with G.S. 143-355(1) or the 
maximum day demand for the previous 1 2 
months equals or exceeds the approved 
water treatment plant design capacity; or 
(v) Projects to provide disinfection for a 
system that currently does not have 
disinfection, 
(e) System Improvements. 12 points shall be 

awarded for projects that shall provide any one or 

more of the following general system 

improvements when needed for public health 

purposes: 
(i) Projects that replace water supply 
production or treatment equipment that is 
undersized, malfunctioning or has 
exceeded its useful life; 

(ii) Proj ects that replace undersized or leaking 
water lines; 

(iii) Projects that address other water quality 
concerns such as iron, manganese, taste, 
and odor; 

(iv) Projects to bring existing facilities to 
current design standards which affect 
water quality such as treatment, chemical 
storage and application, pumping facilities, 
finished storage, distribution systems; 
(v) Projects that eliminate dead ends and 
provide looping in a distribution system 

(vi) Projects that increase water storage 
capacity; 

(vii) Projects to develop new sources of water, 
to augment existing sources, or to expand 
treatment capacity to meet current demand 
when the average daily demand for the 
previous 12 months exceeds 80 percent of 
the available water supply as calculated in 
local water supply plans prepared in 
accordance with G.S. 143-355(1) or the 
maximum day demand for the previous 1 2 
months exceeds 80 percent of the 
approved water treatment plant design 
capacity; or 
(viii) Projects for installation or upgrade of 
water treatment plant waste disposal 
facilities. 
(3) Capacity for Future Growth (Select One) - (Maximum 
Points -20): 

(a) The project is intended to provide for the 
immediate needs. 6 points 

(b) The project is intended to provide for the 
reasonable growth needs of the area during the 
next 5 to 20 year planning period. 1 points 

(c) The project is a proposed regional system or a 
major component of a regional system which is 
intended to provide for the reasonable growth 



1711 



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14:19 



APPROVED RULES 



needs of the area to be served during the next 20 
or more years. 20 points 

Authority G.S. 159G-10; 159G-15; 
Eff. August 1,2000. 

SECTION .0900 - LOAN AND GRANT AWARD AND 

COMMITMENT: DISBURSEMENT OF 

LOANS AND GRANTS 

.0903 CRITERL4 FOR LOAN ADJUSTMENTS 

Upon receipt of bids, a loan commitment may be adjusted as 
follows: 

( 1 ) The loan commitment may be decreased by the receiving 
agency provided the project cost as bid is less than the 
estimated project cost 

(2) Loan commitments may be increased by the receiving 
agency to a maximum of five hundred thousand dollars 
($500,000). provided: the project cost as bid is greater 
than the estimated project cost; the project as bid is in 
accordance with the project for which the loan 
commitment was made; the receiving agency has 
reviewed the bids and determined that substantial cost 
savings would not be available through project revisions 
without jeopardizing the integrity of the project; and 
adequate fiinds are available in the account from which 
the loan was awarded. Increases greater than ten percent 
of the loan commitment meeting the above criteria shall 
be approved jointly by the receiving agency; the Local 
Government Commission; and, for wastewater projects, 
the Environmental Management Commission. 

Authority G.S. 159G-12; 159G-15; 
Amended Eff. August 1, 2000. 

SUBCHAPTER IL - STATE CLEAN WATER BOND 
LOAN PROGRAM 

SECTION .0500 - PRIORITY CRITERLS. FOR 
WASTEWATER TREATMENT WORKS PROJECTS 

.0503 FISCAL RESPONSIBILITY OF THE APPLICANT 

Maximum Value-25 points: 

The value of this Rule will be the sum of the points assigned to 
either Item (1) or (2) of this Rule plus the value assigned to Items 
(3) and (4) of this Rule: 

(1) The applicant has adopted a sewer use ordinance 
approved by the Division of Water Quality which will be 
placed in effect on or before the completion date of the 
proposed project and has established an equitable 
schedule of fees and charges providing that each 
category of users shall pay its proportional part of the 
total cost of the operation and which will provide 
sufficient revenues for the adequate operation, 
maintenance and administration and for reasonable 
expansion of the project, or 6 points 

(2) The applicant has developed a draft sewer use ordinance 
which will be adopted and placed in effect on or before 



the completion date of the proposed project and has 

established an equitable schedule of fees and 

charges providing that each category of users shall pay its 

proportional part of the total cost of the operation 

and which will provide sufficient revenues for the 

adequate operation, maintenance and administration and 

for reasonable expansion of the project 2 points 

(3) The applicant has established by resolution of its 
governing body a capital reserve fund into which all 
surplus revenues from such charges and fees will be 
placed for the purposes specified in G.S. 159G-9(4). 
(Copy of the resolution must be submitted with 
application.) 4 points 

(4) The applicant has followed proper accounting and fiscal 
reporting procedures as evidenced by the applicant's 
most recent report of audit and the applicant is in 
compliance with provisions of the general fiscal control 
laws of the state. 15 points 

The Environmental Management Commission may seek the 
comments of the Secretary of the Local Government Commission 
in determining whether to assign values to Items (3) and (4) of this 
Rule. 

Authority S.L., 1988, c. 132, s. 10; 
Amended Eff. August 1, 2000. 

SECTION .0600 - PRIORITY CRITERIA FOR 
WASTEWATER COLLECTION SYSTEM PROJECTS 

.0604 FISCAL RESPONSIBILITY OF THE APPLICANT 

Maximum Value-25 points: 

The value of this Rule will be the siun of the points assigned to 
either Item (1) or (2) plus the value assigned to Items (3) and (4) of 
this Rule: 

(1) The applicant has adopted a sewer use ordinance 
approved by the Division of Water Quality which will be 
placed in effect on or before the completion date of the 
proposed project and has established an equitable 
schedule of fees and charges, providing that each 
category of users shall pay its proportional part of the 
total cost of the operation, and which will provide 
sufficient revenues for the adequate operation, 
maintenance and administration and for reasonable 
expansion ofthe project or 6 points 

(2) The applicant is in the process of adopting an acceptable 
sewer use ordinance which will be adopted and 
placed in effect on or before the completion date of the 
proposed project and has established an equitable 
schedule of fees and charges, providing that each 
category of users shall pay its proportional part ofthe 
total cost of the operation and which will provide 
sufficient revenues for the adequate operation, 
maintenance and administration and for reasonable 
expansion ofthe project 2 points 

(3) The applicant has established by resolution of the 
governing body a capital reserve fiind into which all 
surplus revenues from such charges and fees will be 
placed for the purposes specified in G.S. 159G-9(4). 



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April 3, 2000 



1712 



APPROVED RULES 



(Copy of the resolution must be submitted with 

application.) 4 points 

(4) The applicant has followed proper accounting and fiscal 

reporting procedures, as evidenced by the applicant's 

most recent report of audit, and the applicant is in 

compliance with provisions of the general fiscal control 

laws of the state. 1 5 points 

The Division of Environmental Management may seek the 

comments of the Secretary of the Local Government Commission 

in determining whether to assign values to Items (3) and (4) of this 

Rule. 

Authority S.L. 1998, c. 132, s. 10; 
Amended Eff. August 1, 2000. 

SECTION .0700 - PRIORITY CRITERIA FOR WATER 
SUPPLY SYSTEMS PROJECTS 

.0701 PUBLIC NECESSITY: HEALTH: SAFETY AND 
WELFARE 

Maximum Value-- 130 points: 

(1) System and Service Area Needs (Select one) - 
(Maximum Points-20): 

(a) The project is intended to increase the source of 
water to meet existing service area needs or to 
alleviate water shortage problems. 12 points 

(b) The project is intended to improve an existing 
system with no increase in the area to 

be served. 12 points 

(c) The project is intended to increase the existing 
area to be served without improvement of the 
existing system. 1 2 points 

(d) The project is intended to increase the existing 
area to be served and includes improvements to 
the existing system. 1 6 points 

(e) The project is intended to increase the existing 
area to be served and includes improvements to 
the existing system and either is a component of 
or will create a regional water supply 

system. 20 points 

(f) The project is intended to provide for 
construction of a basic system for an area which 
is not presentiy served by an approved public 
water supply system and service by an existing 
system is not feasible. 20 points 

(2) Public health and compliance points may be awarded to 
a project based on the following criteria. A proposed 
project shall be necessary to facilitate compliance with 
the N.C. Drinking Water Act or the federal Safe 
Drinking Water Act and to alleviate the type of public 
health concern for which points are awarded. A project 
shall receive only points in the highest sub-category for 
which it may qualify: 

(a) Acute/Imminent Health Hazards. 90 points shall 

be awarded to projects that propose to eliminate 

any one or more of the following acute, ongoing 

health hazards to the consumer: 

(i) Projects that address documented nitrate, 



nitrite or fecal coliform MCL violations, 
or contaminant levels in drinking water 
which constitute acute health risks as 
defmed in 40 C.F.R I41.32(a)(l)(iii) 
which is incorporated by reference at 15A 
NCAC18C.1523;or 
(ii) Projects that eliminate any contaminant in 
the public water system that poses an acute 
risk or imminent hazard to pubhc health as 
determined by the State Health Director or 
a health risk assessment from the Division 
of Epidemiology, Department of Health 
and Human Services in accordance with 
G.S. 130A-2(3). 

(b) Immediate Health Hazards. 60 points shall be 
awarded to projects that propose to eliminate any 
one or more of the following immediate health 
hazards to the consumer: 

(i) Projects that address surface water 
treatment technique violations occurring 
for two or more consecutive months; 

(ii) Projects that resolve any microbiological 
MCL problems for a water system with 
three or more microbiological MCL 
violations during the previous 12 months; 

(iii) Projects that propose filtration for a 
surface water source or for a well that is 
determined to be under the direct influence 
of surface water by the Department that 
does not currentiy have filtration; 

(iv) Projects that address the inability of a 
public water system to inactivate giardia 
and viruses in accordance with 15A 
NCAC18C.2001;or 

(v) Projects that address documented recurrent 
water outages or low pressure below the 
requirements of 15A NCAC 18C .0901. 
Only problems that affect human 
consumption of drinking water shall be 
considered for award of points imder this 
criteria. 

(c) Chronic Health Hazards. 36 points shall be 
awarded to projects that propose to eliminate any 
one or more of the following chronic health 
hazards to the consumer: 

(i) Projects that address exceedances of the 
lead and copper action levels under 15A 
NCAC 18C.1507; 

(ii) Projects that address violations of 
inorganic or organic chemical or 
contaminant MCLs under 15A NCAC 
18C. 1510,. 1517,and. 1518; 

(iii) Projects that address violations of 
radiological contamination MCLs under 
15A NCAC 18C. 1520 and. 1521; or 

(iv) Projects that address a chronic health 
hazard as determined by the State Health 
Director or a health risk assessment fi-om 



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14:19 



APPROVED RULES 



the Division of Epidemiology, Department 
of Health and Human Services. 

(d) Potential Health Hazards. 24 points shall be 
awarded to projects that propose to eliminate any 
one or more of following potential health hazards 
to the consumer: 

(i) Projects that address low chlorine 

residuals in the distribution system; 
(ii) Proj ects that address periodic violations of 
anMCL; 

(iii) Projects for line installation or extensions 
to areas with poor water quality or limited 
quantity, 

(iv) Projects to develop new sources of water, 
to augment existing sources, or to expand 
treatment capacity to meet current demand 
when the average daily demand for the 
previous 1 2 months equals or exceeds the 
available water supply as calculated in 
local water supply plans prepared in 
accordance with G.S. 143-355(1) or the 
maximum day demand for the previous 1 2 
months equals or exceeds the approved 
water treatment plant design capacity; or 

(v) Projects to provide disinfection for a 
system that currently does not have 
disinfection. 

(e) System Improvements. 12 points shall be 
awarded for projects that shall provide any one or 
more of the following general system 
improvements when needed for public health 
purposes: 

(i) Projects that replace water supply 
production or treatment equipment that is 
undersized, malfunctioning or has 
exceeded its useful life; 

(ii) Proj ects that replace undersized or leaking 
water lines; 

(iii) Projects that address other water quality 
concerns such as iron, manganese, taste, 
and odor; 

(iv) Projects to bring existing facilities to 
current design standards which affect 
water quality such as treatment, chemical 
storage and application, pumping facilities, 
finished storage, distribution systems; 

(v) Projects that eliminate dead ends and 
provide looping in a distribution system. 

(vi) Projects that increase water storage 
capacity; 

(vii) Projects to develop new sources of water, 
to augment existing sources, or to expand 
treatment capacity to meet current demand 
when the average daily demand for the 
previous 12 months exceeds 80 percent of 
the available water supply as calculated in 
local water supply plans prepared in 
accordance with G.S. 143-355(1) or the 



maximum day demand for the previous 1 2 
months exceeds 80 percent of the 
approved water treatment plant design 
capacity; or 
(viii) Projects for installation or upgrade of 
water treatment plant waste disposal 
facilities. 
(3) Capacity for Future Growth (Select One) - (Maximum 
Points -20): 

(a) The project is intended to provide for the 
immediate needs. 6 points 

(b) The project is intended to provide for the 
reasonable growth needs of the area during the 
next 5 to 20 year planning period. 1 points 

(c) The project is a proposed regional system or a 
major component of a regional system which is 
intended to provide for the reasonable growth 
needs of the area to be served during the next 20 
or more years. 20 points 

Authority S.L 1998, c. 132, s. 10; 
Amended Eff. August 1, 2000. 

SECTION .1000 - LOAN AWARD, COMMITMENT, AND 
DISBURSEMENT 

.1003 CRITERIA FOR LOAN ADJUSTMENTS 

Upon receipt of bids, a loan commitment for water supply 
projects may be adjusted as follows: 

( 1 ) The loan commitment may be decreased by the receiving 
agency provided the project cost as bid is less than the 
estimated project cost. 

(2) Loan commitments may be increased by the receiving 
agency by a maximum of ten percent provided: the 
project cost as bid is greater than the estimated project 
cost; the project as bid is in accordance with the project 
for which the loan commitment was made; the receiving 
agency has reviewed the bids and determined that 
substantial cost savings would not be available through 
project revisions without jeopardizing the integrity of the 
project; and adequate fiinds are available. 

(3) Increases greater than 10 percent of the loan 
commitment meeting the above criteria shall be approved 
jointly by the receiving agency and the Local 
Government Commission. 

Authority S.L. 1998, c. 132, s. 10; 
Amended Eff. August 1, 2000 

CHAPTER 2 - ENVIRONMENTAL MANAGEMENT 

SUBCHAPTER 2B - SURFACE WATER AND WETLAND 
STANDARDS 

SECTION .0200 - CLASSinCATIONS AND WATER 

QUALITY STANDARDS APPLICABLE 

TO SURFACE WATERS AND WETLANDS IN NORTH 

CAROLINA 



14:19 



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April 3, 2000 



1714 



APPROVED RULES 



.0233 NEUSE RTVER BASIN: NUTRIENT 

SENSITIVE WATERS MANAGEMENT 
STRATEGY: PROTECTION AND 
MAINTENANCE OF EXISTING RIPARIAN 
BUFFERS 
The following is the management strategy for maintaining and 

protecting riparian buffers in the Neuse River Basin. 

(1) PURPOSE. The purpose ofthis Rule shall be to protect 
and preserve riparian buffers in the Neuse River Basin to 
maintain their nutrient removal fiinctions. 

(2) DEFINITIONS. For the purpose of this Rule, these 
terms shall be defined as follows: 

(a) 'Channel' means a natural water-carrying trough 
cut vertically into low areas of the land surface by 
erosive action of concentrated flowing water or a 
ditch or canal excavated for the flow of water, 
(current definition in Forest Practice Guidelines 
Related to Water Quality, 15A NCAC II .0102) 

(b) "DBH' means Diameter at Breast Height of a tree, 
which is measured at 4.5 feet above ground 
surface level. 

(c) 'Ditch or canal' means a man-made channel other 
than a modified natural stream constructed for 
drainage purposes that is typically dug through 
inter-stream divide areas. A ditch or canal may 
have flows that are perennial, intermittent, or 
ephemeral and may exhibit hydrological and 
biological characteristics similar to perennial or 
intermittent streams. 

(d) 'Ephemeral (stormwater) stream' means a feature 
that carries only stormwater in direct response to 
precipitation with water flowing only during and 
shortly after large precipitation events. An 
ephemeral stream may or may not have a well- 
defined channel, the aquatic bed is always above 
the water table, and stormwater runoff is the 
primary source of water. An ephemeral stream 
typically lacks the biological, hydrological, and 
physical characteristics commonly associated 
with the continuous or intermittent conveyance of 
water. 

(f) Torest plantation' means an area of planted trees 
that may be conifers (pines) or hardwoods. On a 
plantation, the intended crop trees are planted 
rather than naturally regenerated from seed on the 
site, coppice (sprouting), or seed that is blown or 
carried into the site. 

(g) 'High Value Tree' means a tree that meets or 
exceeds the following standards: for pine 
species, 14-inch DBH or greater or 18-inch or 
greater stump diameter; and, for hardwoods and 
wetland species, 1 6-inch DBH or greater or 24- 
inch or greater stump diameter. 

(h) 'Intermittent stream' means a well-defined channel 
that contains water for only part of the year, 
typically during winter and spring when the 
aquatic bed is below the water table. The flow 



may be heavily supplemented by stormwater 
runoff. An intermittent stream often lacks the 
biological and hydrological characteristics 
commonly associated with the continuous 
conveyance of water, 
(i) TVlodified natural stream' means an on-site 
channelization or relocation of a stream channel 
and subsequent relocation of the intermittent or 
perennial flow as evidenced by topographic 
alterations in the immediate watershed. A 
modified natural stream must have the typical 
biological, hydrological, and physical 
characteristics commonly associated with the 
continuous conveyance of water, 
(j) Perennial stream' means a well-defined channel 
that contains water year round during a year of 
normal rainfall with the aquatic bed located 
below the water table for most of the year. 
Groundwater is the primary source of water for a 
perennial stream, but it also carries stormwater 
runoff. A perennial stream exhibits the typical 
biological, hydrological, and physical 
characteristics commonly associated with the 
continuous conveyance of water, 
(k) 'Perennial waterbody" means a natural or man- 
made basin that stores surface water permanently 
at depths sufficient to preclude growth of rooted 
plants, including lakes, ponds, sounds, non-stream 
estuaries and ocean. For the purpose of the 
State's riparian buffer protection program, the 
waterbody must be part of a natural drainageway 
(i.e., connected by surface flow to a stream). 
(1) 'Stream' means a body of concentrated flowing 
water in a natural low area or natural channel on 
the land surface, 
(m) 'Surface water" means all waters of the state as 
defmed in G.S. 143-212 except undergroimd 
waters, 
(n) Tree' means a woody plant with a DBH equal to 
or exceeding five inches. 
(3) APPLICABILITY. This Rule shall apply to 50-foot 
wide riparian buffers directly adjacent to surface waters 
in the Neuse River Basin (intermittent streams, perennial 
streams, lakes, ponds, and estuaries), excluding 
wetlands. Except as described in Sub-Item (4)(a)(iii) of 
this Rule, wetlands adjacent to surface waters or within 
50 feet of surface waters shall be considered as part of 
the riparian buffer but are regulated pursuant to 15A 
NCAC 2H .0506. The riparian buffers protected by this 
Rule shall be measured pursuant to Item (4) ofthis Rule. 
For the purpose of this Rule, a surface water shall be 
present if the feature is approximately shown on either 
the most recent version of the soil survey map prepared 
by the Natural Resources Conservation Service of the 
United States Department of Agriculture or the most 
recent version of the 1:24,000 scale (7.5 minute) 
quadrangle topographic maps prepared by the United 
States Geologic Survey (USGS). Riparian buffers 



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14:19 



APPROVED RULES 



adjacent to surface waters that do not appear on either of 
the maps shall not be subject to this Rule. Riparian 
buffers adjacent to surface waters that appear on the 
maps shall be subject to this Rule unless one of the 
following applies. 

(a) EXEMPTION WHEN AN ON-SITE 
DETERMINATION SHOWS THAT SURFACE 
WATERS ARE NOT PRESENT. When a 
landowner or other affected party believes that the 
maps have inaccurately depicted surface waters, 
he or she shall consult the Division or the 
appropriate delegated local authority. Upon 
request, the Division or delegated local authority 
shall make on-site determinations. Any disputes 
over on-site determinations shall be referred to the 
Director in writing. A determination of the 
Director as to the accuracy or application of the 
maps is subject to review as provided in Articles 
3 and 4 of G.S. 1 SOB. Surface waters that appear 
on the maps shall not be subject to this Rule if an 
on-site determination shows that they fall into one 
of the following categories. 

(i) Ditches and manmade conveyances other 

than modified natural streams, 
(ii) Manmade ponds and lakes that are located 

outside natural drainage ways, 
(iii) Ephemeral (stormwater) streams. 

(b) EXEMPTION WHEN EXISTING USES ARE 
PRESENT AND ONGOING. This Rule shall 
not apply to portions of the riparian buffer where 
a use is existing and ongoing according to the 
following: 

(i) A use shall be considered existing if it was 
present within the riparian buffer as of 
July 22, 1997. Existing uses shall include, 
but not be limited to, agriculture, 
buildings, industrial facilities, commercial 
areas, transportation facilities, maintained 
lawns, utility lines and on-site sanitary 
sewage systems. Only the portion of the 
riparian buffer that contains the footprint 
of the existing use is exempt from this 
Rule. Activities necessary to maintain 
uses are allowed provided that no 
additional vegetation is removed from 
Zone 1 except that grazed or trampled by 
livestock and existing diffuse flow is 
maintained. Grading and revegetating 
Zone 2 is allowed provided that the health 
of the vegetation in Zone 1 is not 
compromised, the ground is stabilized and 
existing diffuse flow is maintained. 

(ii) At the time an existing use is proposed to 
be converted to another use, this Rule shall 
apply. An existing use shall be considered 
to be converted to another use if any of the 
following applies: 
(A) Impervious surface is added to the 



riparian buffer in locations where it 
did not exist previously. 

(B) An agricultural operation within 
the riparian buffer is converted to a 
non-agricultural use. 

(C) A lawn within the riparian buffer 
ceases to be maintained. 

(4) ZONES OF THE RIPARIAN BUFFER. The protected 
riparian buffer shall have two zones as follows: 

(a) Zone 1 shall consist of a vegetated area that is 
undisturbed except for uses provided for in Item 
(6) of this Rule. The location of Zone 1 shall be 
as follows: 

(i) For intermittent and perennial streams, 
Zone 1 shall begin at the most landward 
limit of the top of bank or the rooted 
herbaceous vegetation and extend 
landward a distance of 30 feet on all sides 
of the surface water, measured 
horizontally on a line perpendicular to the 
surface water. 

(ii) For ponds, lakes and reservoirs located 
within a natural drainage way. Zone I 
shall begin at the most landward limit of 
the normal water level or the rooted 
herbaceous vegetation and extend 
landward a distance of 30 feet, measured 
horizontally on a line perpendicular to the 
surface water. 

(iii) For surface waters within the 20 Coastal 
Counties (defined in 15A NCAC 2B 
.0202) within the junsdiction of the 
Division of Coastal Management, Zone 1 
shall begin at the most landward limit of 
the normal high water level, the normal 
water level, or the landward limit of 
coastal wetlands as defined by the 
Division of Coastal Management and 
extend landward a distance of 30 feet, 
measured horizontally on a line 
perpendicular to the surface water. 

(b) Zone 2 shall consist of a stable, vegetated area 
that is undisturbed except for activities and uses 
provided for in Item (6) of this Rule. Grading 
and revegetating Zone 2 is allowed provided that 
the health of the vegetation in Zone 1 is not 
compromised. Zone 2 shall begin at the outer 
edge of Zone 1 and extend landward 20 feet as 
measured horizontally on a line perpendicular to 
the surface water. The combined width of Zones 
1 and 2 shall be 50 feet on all sides of the surface 
water, whichever is more restrictive. 

(5) DIFFUSE FLOW REQUIREMENT. Difftise flow of 
runoff shall be maintained in the riparian buffer by 
dispersing concentrated flow and reestablishing 
vegetation. 

(a) Concentrated runoff from new ditches or 
manmade conveyances shall be converted to 



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NORTH CAROLINA REGISTER 



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1716 



APPROVED RULES 



diffuse flow before the runoff enters the Zone 2 
riparian buffer, 
(b) Periodic corrective action to restore diffuse flow 
shall be taken if necessary to impede the 
formation of erosion gullies. 
(6) TABLE OF USES. The following chart sets out the 



uses and their designation under this Rule as exempt, 
allowable, allowable with mitigation, or prohibited. The 
requirements for each category are given in Item (7) of 
this Rule. 



Exempt 



Allowable 



A.llowable with 
Mitigation 



Prohibited 



Airport facilities: 
Airport facilities that impact equal to or less than 1 50 linear 
feet or one-third of an acre of riparian buffer 
Airport facilities that impact greater than 150 linear feet or one- 
third of an acre of riparian buffer 



Archaeological activities 



Bridges 



X 



Dam maintenance activities 



Drainage ditches, roadside ditches and stormwater outfalls 

hrough riparian buffers: 
Existing drainage ditches, roadside ditches, and stormwater 
outfalls provided that they are managed to minimize the 
sediment, nutrients and other pollution that convey to 
waterbodies 

New drainage ditches, roadside ditches and stormwater outfalls 
provided that a stormwater management facility is installed to 
control nitrogen and attenuate flow before the conveyance 
discharges through the riparian buffer 

New drainage ditches, roadside ditches and stormwater outfalls 
that do not provide control for nitrogen before discharging 
through the riparian buffer 

Excavation of the streambed in order to bring it to the same 
elevation as the invert of a ditch 



X 



Drainage of a pond in a natural drainage way provided that a new 
iparian buffer that meets the requirements of Items (4) and (5) is 
established adjacent to the new channel 



Driveway crossings of streams and other surface waters subject 

;o this Rule: 
Driveway crossings on single family residential lots that 
disturb equal to or less than 25 linear feet or 2, 500 square feet 
of riparian buffer 

Driveway crossings on single family residential lots that 
disturb greater than 25 linear feet or 2,500 square feet of 
riparian buffer 

In a subdivision that cumulatively disturb equal to or less than 
150 linear feet or one-third of an acre of riparian buffer 
In a subdivision that cumulatively disturb greater than 150 
linear feet or one-third of an acre of riparian buffer 



X 



X 



X 



Fences provided that disturbance is minimized and installation 
Joes not result in removal of forest vegetation 



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14:19 



APPROVED RULES 



Forest harvesting - see Item (1 1) of this Rule 










i^ertilizer application: 

' One-time fertilizer application to establish replanted vegetation 

' Ongoing fertilizer application 


X 






X 


jrading and revegetation in Zone 2 only provided that diffuse 
Flow and the health of existing vegetation in Zone 1 is not 
;ompromised and disturbed areas are stabilized 


X 








Sreenway/hiking trails 




X 






historic preservation 


X 








:^dfills as defined by G.S. 1 30A-290 








X 


Vlining activities: 

' Mining activities that are covered by the Mining Act provided 
that new riparian buffers that meet the requirements of Items 
(4) and (5) are established adjacent to the relocated channels 

' Mining activities that are not covered by the Mining Act OR 
where new riparian buffers that meet the requirements or Items 
(4) and (5) are not established adjacent to the relocated 
channels 

' Wastewater or mining dewatering wells with approved 
NPDES permit 


X 


X 


X 




^on-electric utility lines: 

' Impacts other than perpendicular crossings in Zone 2 only^ 

> Impacts other than perpendicular crossings in Zone 1^ 




X 


X 




Mon-electric utility line perpendicular crossing of streams and 

3ther surface waters subject to this Rule': 

■ Perpendicular crossings that disturb equal to or less than 40 

linear feet of riparian buffer with a maintenance corridor equal 

to or less than 10 feet in width 
' Perpendicular crossings that disturb greater than 40 linear feet 

of riparian buffer with a maintenance corridor greater than 10 

feet in width 
' Perpendicular crossings that disturb greater than 40 linear feet 

but equal to or less than 1 50 linear feet of riparian buffer with a 

maintenance corridor equal to or less than 1 feet in width 
' Perpendicular crossings that disturb greater than 40 linear feet 

but equal to or less than 1 50 linear feet of riparian buffer with a 

maintenance corridor greater than 10 feet in width 
' Perpendicular crossings that disturb greater than 150 linear feet 

of riparian buffer 


X 


X 
X 


X 

X 




Dn-site sanitary sewage systems - new ones that use ground 
ibsorption 








X 


Dverhead electric utility lines: 

' Impacts other than perpendicular crossings in Zone 2 only' 

• Impacts other than perpendicular crossings in Zone 1 '•^•' 


X 

X 









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April 3, 2000 



1718 



APPROVED RULES 



Dverhead electric utility line perpendicular crossings of streams 

ind other surface waters subject to this Rule' 

■ Perpendicular crossings that disturb equal to or less than 1 50 

linear feet of riparian buffer ' 
• Perpendicular crossings that disturb greater than 1 50 linear feet 

of riparian buffer '• ^ 


X 


X 






Periodic maintenance of modified natural streams such as canals 
ind a grassed travelway on one side of the surface water when 
iltemative forms of maintenance access are not practical 




X 







' Provided that, in Zone 1 , all of the following BMPs for overhead utility lines are used. If all of these BMPs are not used, then the overhead 
utility lines shall require a no practical alternatives evaluation by the Division. 

• A minimum zone of 1 feet wide immediately adjacent to the water body shall be managed such that only vegetation that poses a hazard 
or has the potential to grow tall enough to interfere with the line is removed. 

• Woody vegetation shall be cleared by hand. No land grubbing or grading is allowed. 

• Vegetative root systems shall be left intact to maintain the integrity of the soil. Stumps shall remain where trees are cut. 

• Rip rap shall not be used unless it is necessary to stabilize a tower. 

• No fertilizer shall be used other than a one-time application to re-establish vegetation. 

• Construction activities shall minimize the removal of woody vegetation, the extent of the disturbed area, and the time in which areas remain 
in a disturbed state. 

• Active measures shall be taken after construction and during routine maintenance to ensure difftise flow of stormwater through the buffer. 

• In wetlands, mats shall be utilized to minimize soil disturbance. 

' Provided that poles or towers shall not be installed within 1 feet of a water body unless the Division completes a no practical alternatives 

evaluation. 

' Perpendicular crossings are those that intersect the surface water at an angle between 75 degrees and 105 degrees. 





Exempt 


Allowable 


Allowable 

with 

Mitigation 


Prohibited 


Playground equipment: 

• Playground equipment on single family lots provided that 
installation and use does not result in removal of vegetation 

• Playground equipment installed on lands other than single- 
family lots or that requires removal of vegetation 


X 


X 






Ponds in natural drainage ways, excluding dry ponds: 

• New ponds provided that a riparian buffer that meets the 
requirements of Items (4) and (5) is established adjacent to 
the pond 

• New ponds where a riparian buffer that meets the 
requirements of Items (4) and (5) is NOT established 
adjacent to the pond 




X 


X 




Protection of existing structures, facilities and streambanks 
when this requires additional disturbance of the riparian 
buffer or the stream channel 




X 






Railroad impacts other than crossings of streams and other 
surface waters subject to this Rule 






X 





77/9 



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April 3, 2000 



14:19 



APPROVED RULES 



Railroad crossings of streams and other surface waters subject 
to this Rule: 

• Railroad crossings that impact equal to or less than 40 
linear feet of riparian buffer 

• Railroad crossings that impact greater than 40 linear feet but 
equal to or less than 150 linear feet or one-third of an acre 
of riparian buffer 

• Railroad crossings that impact greater than 150 linear feet 
or one-third of an acre of riparian buffer 


X 


X 


X 




Removal of previous fill or debris provided that diffuse flow 
is maintained and any vegetation removed is restored 


X 








Road impacts other than crossings of streams and other 
surface waters subject to this Rule 






X 




Road crossings of streams and other surface waters subject to 
this Rule: 

• Road crossings that impact equal to or less than 40 linear 
feet of riparian buffer 

• Road crossings that impact equal to or less than 1 50 linear 
feet or one-third of an acre of riparian buffer 

• Road crossings that impact greater than 1 50 linear feet or 
one-third of an acre of riparian buffer 


X 


X 


X 




Scientific studies and stream gauging 


X 








Stormwater management ponds excluding dry ponds: 

• New stormwater management ponds provided that a 
riparian buffer that meets the requirements of Items (4) and 
(5) is established adjacent to the pond 

• New stormwater management ponds where a riparian 
buffer that meets the requirements of Items (4) and (5) is 
NOT established adjacent to the pond 




X 


X 




Stream restoration 


X 








Streambank stabilization 




X 






Temporary roads: 

• Temporary roads that disturb less than or equal to 2,500 
square feet provided that vegetation is restored within six 
months of initial disturbance 

• Temporary roads that disturb greater than 2,500 square feet 
provided that vegetation is restored within six months of 
initial disturbance 

• Temporary roads used for bridge construction or 
replacement provided that restoration activities, such as soil 
stabilization and revegetation, are conducted immediately 
after construction 


X 


X 
X 






Temporary sediment and erosion control devices: 

• In Zone 2 only provided that the vegetation in Zone 1 is not 
compromised and that discharge is released as diffuse flow 
in accordance with Item (5) 

• In Zones 1 and 2 to control impacts associated with uses 
approved by the Division or that have received a variance 
provided that sediment and erosion control for upland areas 
is addressed to the maximum extent practical outside the 


X 


X 







14:19 



NORTH CAROLINA REGISTER 



April 3, 2000 



1720 



APPROVED RULES 



buffer 
• In-stream temporary erosion and sediment control measures 
for work within a stream channel 


X 








Underground electric utility lines: 

• Impacts other than perpendicular crossings in Zone 2 only 

• Impacts other than perpendicular crossings in Zone 1 ^-^ 


X 
X 








Underground electric utility line perpendicular crossings of 
streams and other surface waters subject to this Rule:^ 

• Perpendicular crossings that disturb less than or equal to 40 
linear feet of riparian buffer^'' 

• Peipendicular crossings that disturb greater than 40 linear 
feet of riparian buffer^" 


X 


X 







"* Provided that, in Zone 1 , all of the following BMPs for underground utility lines are used. If all of these BMPs are not used, then the 
underground utility line shall require a no practical alternatives evaluation by the Division. 

• Woody vegetation shall be cleared by hand. No land grubbing or grading is allowed. 

• Vegetative root systems shall be left intact to maintain the integrity of the soil. Stumps shall remain, except in the trench, where trees are 
cut. 

• Underground cables shall be installed by vibratory plow or trenching. 

• The trench shall be backfilled with the excavated soil material immediately following cable installation. 

• No fertilizer shall be used other than a one-time application to re-establish vegetation. 

• Construction activities shall minimize the removal of woody vegetation, the extent of the disturbed area, and the time in which areas remain 
in a disturbed state. 

• Active measures shall be taken after construction and during routine maintenance to ensure diffiise flow of stormwater through the buffer. 

• In wetiands, mats shall be utilized to minimize soil disturbance. 





Exempt 


Allowable 


Allowable 

with 

Mitigation 


Prohibited 


Vegetation management: 

• Emergency fire control measures provided that topography 
is restored 

• Periodic mowing and harvesting of plant products in Zone 2 
only 

• Planting vegetation to enhance the riparian buffer 

• Pruning forest vegetation provided that the health and 
function of the forest vegetation is not compromised 

• Removal of individual trees which are in danger of causing 
damage to dwellings, other structures or human life 

• Removal of poison ivy 

• Removal of understory nuisance vegetation as defmed in: 
Smith, Cherri L. 1998. Exotic Plant Guidelines. 
Department of Environment and Natural Resources. 
Division of Parks and Recreation. Raleigh, NC. Guideline 
#30 


X 

X 

X 
X 

X 

X 
X 








Water dependent structures as defined in 1 5 A NCAC 2B 
.0202 




X 







1721 



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April 3, 2000 



14:19 



APPROVED RULES 



Water supply resenfoirs: 

• New reservoirs provided that a riparian buffer that meets 
the requirements of Items (4) and (5) is established adjacent 
to the reservoir 

• New reservoirs where a riparian buffer that meets the 
requirements of Items (4) and (5) is NOT established 
adjacent to the reservoir 




X 


X 




Water wells 


X 








Wetland restoration 


X 









(7) REQUIREMENTS FOR CATEGORIES OF USES. 
Uses designated as exempt, allowable, allowable with 
mitigation and prohibited in Item (6) of this Paragraph 
shall have the following requirements: 

(a) EXEMPT. Uses designated as exempt are 
allowed within the riparian buffer. Exempt 
uses shall be designed, constructed and 
maintained to minimize soil disturbance and to 
provide the maximum water quality protection 
practicable. In addition, exempt uses shall 
meet requirements listed in Item (6) of this 
Rule for the specific use. 

(b) ALLOWABLE. Uses designated as allowable 
may proceed within the riparian buffer 
provided that there are no practical altematives 
to the requested use pursuant to Item (8) of this 
Rule. These uses require written authorization 
from the Division or the delegated local 
authority. 

(c) ALLOWABLE WITH MITIGATION. Uses 
designated as allowable wath mitigation may 
proceed within the riparian buffer provided that 
there are no practical altematives to the 
requested use pursuant to Item (8) of this Rule 
and an appropriate mitigation strategy has been 
approved pursuant to Item (10) of this Rule. 
These uses require written authorization from 
the Division or the delegated local authority. 

(d) PROHIBITED. Uses designated as prohibited 
may not proceed within the riparian buffer 
unless a variance is granted pursuant to Item 
(9) of this Rule. Mitigation may be required as 
one condition of a variance approval. 

(8) DETERMINATION OF "NO PRACTICAL 
ALTERNATfVES." Persons who wish to undertake 
uses designated as allowable or allowable with 
mitigation shall submit a request for a "no practical 
altematives" determination to the Division or to the 
delegated local authority. The applicant shall certify 
that the criteria identified in Sub-Item (8)(a) of this 
Rule are met. The Division or the delegated local 
authority shall grant an Authorization Certificate upon 
a "no practical altematives" determination. The 
procedure for making an Authorization Certificate 
shall be as follows: 

(a) For any request for an Authorization 



Certificate, the Division or the delegated local 

authority shall review the entire project and 

make a finding of fact as to whether the 

following requirements have been met in 

support of a "no practical altematives" 

determination: 

(i) The basic project purpose cannot be 

practically accomplished in a manner 

that would better minimize disturbance, 

preserve aquatic life and habitat, and 

protect water quality. 

(ii) The use cannot practically be reduced in 

size or density, reconfigured or 

redesigned to better minimize 

disturbance, preserve aquatic life and 

habitat, and protect water quality. 

(iii) Best management practices shall be 

used if necessaiy to minimize 

disturbance, preserve aquatic life and 

habitat, and protect water quality. 

(b) Requests for an Authorization Certificate shall 

be reviewed and either approved or denied 

within 60 days of receipt of a complete 

submission based on the criteria in Sub-Item 

(8)(a) of this Rule by either the Division or the 

delegated local authority. Failure to issue an 

approval or denial within 60 days shall 

constitute that the applicant has demonstrated 

"no practical altematives." The Division or the 

delegated local authority may attach conditions 

to the Authorization Certificate that support the 

purpose, spirit and intent of the riparian buffer 

protection program. Complete submissions 

shall include the following: 

(i) The name, address and phone number 

oftheapphcant; 
(ii) The nature of the activity to be 

conducted by the applicant; 
(iii) The location of the activity, including 

the jurisdiction; 
(iv) Amapof sufficient detail to accurately 
delineate the boundaries of the land to 
be utilized in carrying out the activity, 
the location and dimensions of any 
disturbance in riparian buffers 
associated with the activity, and the 
extent of riparian buffers on the land; 



14:19 



NORTH CAROLINA REGISTER 



April 3, 2000 



1722 



APPROVED RULES 



(v) An explanation of why this plan for the 

activity cannot be practically 

accomplished, reduced or reconfigured 

to better minimize disturbance to the 

riparian buffer, preserve aquatic life and 

habitat and protect water quality; and 

(vi) Plans for any best management practices 

proposed to be used to control the 

impacts associated with the activity. 

(c) Any disputes over determinations regarding 

Authorization Certificates shall be referred to 

the Director for a decision. The Director's 

decision is subject to review as provided in 

Articles 3 and 4 of G.S. 150B. 

(9) VARIANCES. Persons who wish to undertake uses 

designated as prohibited may pursue a variance. The 

Division or the appropriate delegated local authority 

may grant minor variances. The variance request 

procedure shall be as follows: 

(a) For any variance request, the Division or the 

delegated local authority shall make a fmding 

of fact as to whether the following 

requirements have been met: 

(i) TTiere are practical difficulties or 

unnecessary hardships that prevent 

compliance with the strict letter of the 

riparian buffer protection requirements. 

Practical difficulties or unnecessary 

hardships shall be evaluated in 

accordance with the following: 

(A) If the applicant complies with 
the provisions of this Rule, 
he/she can secure no reasonable 
return from, nor make 
reasonable use of, his/her 
property. Merely proving that 
the variance would permit a 
greater profit fi^om the property 
shall not be considered adequate 
justification for a variance. 
Moreover, the Division or 
delegated local authority shall 
consider whether the variance is 
the minimum possible deviation 
from the terms of this Rule that 
shall make reasonable use of the 
property possible. 

(B) The hardship results from 
application of this Rule to the 
property rather than from other 
factors such as deed restrictions 
or other hardship. 

(C) The hardship is due to the 
physical nature of the applicant's 
property, such as its size, shape, 
or topography, which is different 
from that of neighboring 
property. 



(D) The applicant did not cause the 
hardship by knowingly or 
unknowingly violating this Rule. 

(E) The applicant did not purchase 
the property after the effective 
date of this Rule, and then 
requesting an appeal. 

(F) The hardship is unique to the 
applicant's property, rather than 
the result of conditions that are 
widespread. If other properties 
are equally subject to the 
hardship created in the 
restriction, then granting a 
variance would be a special 
privilege denied to others, and 
would not promote equal justice; 

(ii) The variance is in harmony with the 
general purpose and intent of the State's 
riparian buffer protection requirements 
and preserves its spirit; and 

(iii) In granting the variance, the public 
safety and welfare have been assured 
water quality has been protected, and 
substantial justice has been done. 

(b) MINOR VARIANCES. A minor variance 
request pertains to activities that are proposed 
only to impact any portion of Zone 2 of the 
riparian buffer. Minor variance requests shall 
be reviewed and approved based on the criteria 
in Sub-Item (9)(a) of this Rule by the either the 
Division or the delegated local authority 
pursuant to G.S. 153 A Article 18, or G.S. 
160 A- Article 19. The Division or the 
delegated local authority may attach conditions 
to the variance approval that support the 
purpose, spirit and intent of the riparian buffer 
protection program. Requests for appeals of 
decisions made by the Division shall be made 
to the Office of Administrative Hearings. 
Request for appeals made by the delegated 
local authority shall be made to the appropriate 
Board of Adjustment under G.S. 1 60A-388 or 
G.S. 153A-345. 

(c) MAJOR VARIANCES. A major variance 
request pertains to activities that are proposed 
to impact any portion of Zone 1 or any portion 
of both Zones 1 and 2 of the riparian buffer. If 
the Division or the delegated local authority has 
determined that a major variance request meets 
the requirements in Sub-Item (9)(a) of this 
Rule, then it shall prepare a preliminary finding 
and submit it to the Commission. Preliminary 
findings on major variance requests shall be 
reviewed by the Commission within 90 days 
after receipt by the Director. Requests for 
appeals of determinations that the 
requirements of Sub-Item (9)(a) of this Rule 



1723 



NORTH CAROLINA REGISTER 



April 3, 2000 



14:19 



APPROVED RULES 



have not been met shall be made to the Office 

of Administrative Hearings for determinations 

made by the Division or the appropriate Board 

of Adjustments under G.S. 160-388 or G.S. 

153A-345 for determinations made by the 

delegated local authority. The purpose of the 

Commission's review is to determine if it 

agrees that the requirements in Sub-Item (9)(a) 

of this Rule have been met Requests for 

appeals of decisions made by the Commission 

shall be made to the Office of Administrative 

Hearings. The following actions shall be taken 

depending on the Commission's decision on the 

major variance request; 

(i) Upon the Commission's approval, the 

Division or the delegated local authority 

shall issue a final decision granting the 

major variance. 

(ii) Upon the Commission's approval with 

conditions or stipulations, the Division 

or the delegated local authority shall 

issue a final decision, which includes 

these conditions or stipulations. 

(iii) Upon the Commission's denial, the 

Division or the delegated local authority 

shall issue a fmal decision denying the 

major variance. 

(10) MITIGATION. Persons who wish to undertake uses 
designated as allowable with mitigation shall meet the 
following requirements in order to proceed with their 
proposed use. 

(a) Obtain a determination of "no practical 
altematives" to the proposed use pursuant to 
Item (8) of this Rule. 

(b) Obtain approval for a mitigation proposal 
pursuant to 15A NCAC 2B .0242. 

(11) REQUIREMENTS SPECIFIC TO FOREST 
HARVESTING. The following requirements shall 
apply for forest harvesting operations and practices. 

(a) The following measures shall apply in the 

entire riparian buffer: 
(i) Logging decks and sawmill sites shall 
not be placed in the riparian buffer. 

(ii) Access roads and skid trails shall be 
prohibited except for temporary and 
permanent stream crossings established 
in accordance with 15A NCAC II 
.0203. Temporary stream crossings 
shall be permanently stabilized after any 
site disturbing activity is completed. 

(iii) Timber felling shall be directed away 
from the stream or water body. 

(iv) Skidding shall be directed away fi^om 
the stream or water body and shall be 
done in a manner that minimizes soil 
disturbance and prevents the creation of 
channels or ruts, 
(v) Individual trees may be treated to 



maintain or improve their health, form 
or vigor, 
(vi) Harvesting of dead or infected trees or 
application of pesticides necessary to 
prevent or control extensive tree pest 
and disease infestation shall be allowed. 
These practices must be approved by the 
Division of Forest Resources for a 
specific site. The Division of Forest 
Resources must notify the Division of 
all approvals, 
(vii) Removal of individual trees that are in 
danger of causing damage to stmctures 
or human life shall be allowed, 
(viu) Natural regeneration of forest vegetation 
and planting of trees, shrubs, or ground 
cover plants to enhance the riparian 
buffer shall be allowed provided that 
soil disturbance is minimized Plantings 
shall consist primarily of native species, 
(ix) High intensity prescribed bums shall not 

be allowed. 

(x) Application of fertilizer shall not be 

allowed except as necessary for 

permanent stabilization. Broadcast 

application of fertilizer or herbicides to 

the adjacent forest stand shall be 

conducted so that the chemicals are not 

applied directly to or allowed to drift 

into the riparian buffer. 

(b) In Zone 1, forest vegetation shall be protected 

and maintained. Selective harvest as provided 

for below is allowed on forest lands that have 

a deferment for use value under forestry in 

accordance with G.S. 105-277.2 through G.S. 

277.6 or on forest lands that have a forest 

management plan prepared or approved by a 

registered professional forester. Copies of 

either the approval of the deferment for use 

value under forestry or the forest management 

plan shall be produced upon request. For such 

forest lands, selective harvest is allowed in 

accordance with the following: 

(i) Tracked or wheeled vehicles are not 

permitted except at stream crossings 

designed, constructed and maintained in 

accordance with 15A NCAC II .0203. 

(ii) Soil disturbing site preparation activities 

are not allowed, 
(iii) Trees shall be removed with the 
minimum disturbance to the soil and 
residual vegetation, 
(iv) The following provisions for selective 
harvesting shall be met: 
(A) The first 10 feet of Zone 1 
directiy adjacent to the stream or 
waterbody shall be undisturbed 
except for the removal of 



14:19 



NORTH CAROLINA REGISTER 



April 3, 2000 



1724 



APPROVED RULES 



individual high value trees as 
defined provided that no trees 
with exposed primary roots 
visible in the streambank be cut. 

(B) In the outer 20 feet of Zone 1 , a 
maximum of 50 percent of the 
trees greater than five inches dbh 
may be cut and removed The 
reentry time for harvest shall be 
no more frequent than every 15 
years, except on forest 
plantations where the reentry 
time shall be no more frequent 
than every five years. In either 
case, the trees remaining after 
harvest shall be as evenly spaced 
as possible. 

(C) In Zone 2, harvesting and 
regeneration of the forest stand 
shall be allowed provided that 
sufficient ground cover is 
maintained to provide for 
diffusion and infiltration of 
surface runoff. 

(12) REQUIREMENTS SPECIFIC TO LOCAL 
GOVERNMENTS WITH STORMWATER 
PROGRAMS FOR NITROGEN CONTROL. Local 
governments that are required to have local 
stormwater programs pursuant to 15A NCAC 2B 
.0235 shall have two options for ensuring protection of 
riparian buffers on new developments within their 
jurisdictions as follows. 

(a) Obtain authority to implement a local riparian 
buffer protection program pursuant to 15A 
NCAC 2B .0241. 

(b) Refrain from issuing local approvals for new 
development projects unless either: 

(i) The person requesting the approval does 
not propose to impact the riparian buffer 
of a surface water that appears on either 
the most recent versions of the soil 
survey maps prepared by the Natural 
Resources Conservation Service of the 
United States Department of Agriculture 
or the most recent versions of the 
1 :24,000 scale (7.5 minute quadrangle) 
topographic maps prepared by the 
United States Geologic Survey (USGS). 
(ii) The person requesting the approval 
proposes to impact the riparian buffer of 
a surface water that appears on the maps 
described in Sub-Item (12)(b)(i) of this 
Rule and either: 

(A) Has received an on-site 
determination from the Division 
pursuant to Sub-Item (3)(a) of 
this Rule that surface waters are 
not present; 



(B) Has received an Authorization 
Certificate from the Division 
pursuant to Item (8) of this Rule 
for uses designated as Allowable 
imder this Rule; 

(C) Has received an Authorization 
Certificate from the Division 
pursuant to Item (8) of this Rule 
and obtained the Division's 
approval on a mitigation plan 
pursuant to Item (10) of this 
Rule for uses designated as 
Allowable with Mitigation under 
this Rule; or 

(D) Has received a variance from the 
Commission pursuant to Item (9) 
of this Rule. 

(13) OTHER LAWS, REGULATIONS AND PERMITS. 
In all cases, compliance with this Rule does not 
preclude the requirement to comply with all federal, 
state and local regulations and laws. 

Authority G.S. 143-214.1; 143-214.7; 143-215.3(a)(l);S.L. 1995. 

c. 572.; 

Eff. August 1,2000. 

.0259 TAR-PAMLICO RTVER BASIN: NUTRIENT 
SENSITIVE WATERS MANAGEMENT 
STRATEGY: PROTECTION AND 

MAINTENANCE OF EXISTING RIPARIAN 
BUFFERS 

The following is the management strategy for maintaining and 
protecting existing riparian buffers in the Tar-Pamlico River 
Basin. 

(1) PURPOSE. The purpose of this Rule shall be to 
protect and preserve existing riparian buffers, to 
maintain their nutrient removal fiinctions, in the entire 
Tar-Pamlico River Basin, whose surface waters are 
described in the Schedule of Classifications, 15A 
NCAC 2B .0316. 

(2) DEFINITIONS. For the purpose of this Rule, these 
terms shall be defmed as follows: 

(a) 'Channel' means a natural water-carrying 
trough cut vertically into low areas of the land 
surface by erosive action of concentrated 
flowing water or a ditch or canal excavated for 
the flow of water, (current definition in Forest 
Practice Guidelines Related to Water Quality, 
15A NCAC 11.0102) 

(b) 'DBH' means Diameter at Breast Height of a 
tree, which is measured at 4.5 feet above 
ground surface level. 

(c) 'Ditch or canal' means a man-made channel 
other than a modified natural stream 
constructed for drainage purposes that is 
typically dug through inter-stream divide areas. 
A ditch or canal may have flows that are 
perennial, intermittent, or ephemeral and may 



1725 



NORTH CAROLINA REGISTER 



April 3, 2000 



14:19 



APPROVED RULES 



exhibit hydrological and biological 
characteristics similar to perennial or 
intermittent streams. 
(d) "Ephemeral (stormwater) stream' means a 
feature that carries only stormwater in direct 
response to precipitation with water flowing 
only during and shortly after large precipitation 
events. An ephemeral stream may or may not 
have a well-defined channel, the aquatic bed is 
always above the water table, and stormwater 
runoff is the primary source of water. An 
ephemeral stream typically lacks the biological, 
hydrological, and physical characteristics 
commonly associated with the continuous or 
intermittent conveyance of water. 

(f) Torest plantation' means an area of planted 
trees that may be conifers (pines) or 
hardwoods. On a plantation, the intended crop 
trees are planted rather than naturally 
regenerated from seed on the site, coppice 
(sprouting), or seed that is blown or carried into 
the site. 

(g) "High Value Tree' means a tree that meets or 
exceeds the following standards: for pine 
species, 14-inch DBH or greater or 1 8-inch or 
greater stump diameter; and, for hardwoods 
and wetland species, 1 6-inch DBH or greater or 
24-inch or greater stump diameter. 

(h) 'Intermittent stream' means a well-defined 
channel that contains water for only part of the 
year, typically during winter and spring when 
the aquatic bed is below the water table. TTie 
flow may be heavily supplemented by 
stormwater runoff An intermittent stream 
often lacks the biological and hydrological 
characteristics commonly associated with the 
conveyance of water. 

(i) IVIodified natural stream' means an on-site 
channelization or relocation of a stream 
channel and subsequent relocation of the 
intermittent or perennial flow as evidenced by 
topographic alterations in the immediate 
watershed. A modified natural stream must 
have the typical biological, hydrological, and 
physical characteristics commonly associated 
with the continuous conveyance of water. 

(j) 'Perennial stream' means a well-defined 
channel that contains water year round during 
a year of normal rainfall with the aquatic bed 
located below the water table for most of the 
year. Groundwater is the primary source of 
water for a perennial stream, but it also carries 
stormwater runoff. A perennial stream exhibits 
the typical biological, hydrological, and 
physical characteristics commonly associated 
with the continuous conveyance of water. 

(k) Terennial waterbody means a natural or man- 
made basin that stores surface water 



permanently at depths sufficient to preclude 

growth of rooted plants, including lakes, 

ponds, sounds, non-stream estuaries and ocean. 

For the purpose of the State's riparian buffer 

protection program, the waterbody must be part 

of a natural drainageway (i.e., connected by 

surface flow to a stream). 

(1) 'Stream' means a body of concentrated flowing 

water in a natural low area or natural channel 

on the land surface. 

(m) 'Surface waters' means all waters of the state as 

defined in G.S. 143-212 except underground 

waters. 

(n) Tree' means a woody plant with a DBH equal 

to or exceeding five inches. 

(3) APPLICABILITY. This Rule shall apply to 50-foot 

wide riparian buffers directly adjacent to surface 

waters in the Tar-Pamlico River Basin (intermittent 

streams, perennial streams, lakes, ponds, and 

estuaries), excluding wetlands. Except as described in 

Sub-Item (4)(a)(iii) of this Rule, wetlands adjacent to 

surface waters or within 50 feet of surface waters shall 

be considered as part of the riparian buffer but are 

regulated pursuant to 15A NCAC 2H .0506. The 

riparian buffers protected by this Rule shall be 

measured pursuant to Item (4) of this Paragraph. For 

the purpose of this Rule, a surface water shall be 

present if the feature is approximately shown on either 

the most recent version of the soil survey map 

prepared by the Natural Resources Conservation 

Service of the United States Department of 

Agriculture or the most recent version of the 1 :24,000 

scale (7.5 minute) quadrangle topographic maps 

prepared by the United States Geologic Survey 

(USGS). Riparian buffers adjacent to surface waters 

that do not appear on either of the maps shall not be 

subject to this Rule. Riparian buffers adjacent to 

surface waters that appear on the maps shall be subject 

to this Rule unless one of the following applies. 

(a) EXEMPTION WHEN AN ON-SITE 

DETERMINATION SHOWS THAT 

SURFACE WATERS ARE NOT PRESENT. 

When a landowner or other affected party 

believes that the maps have inaccurately 

depicted surface waters, he or she shall consult 

the Division or the appropriate delegated local 

authority. Upon request, the Division or 

delegated local authority shall make on-site 

determinations. Any disputes over on-site 

determinations shall be referred to the Director 

in writing. A determination of the Director as 

to the accuracy or application of the maps is 

subject to review as provided in Articles 3 and 

4 of G.S. 150B. Surface waters that appear on 

the maps shall not be subject to this Rule if an 

on-site determinahon shows that they fall into 

one of the following categories. 

(i) Ditches and manmade conveyances 



14:19 



_ 



NORTH CAROLINA REGISTER 



April 3, 2000 



1726 



APPROVED RULES 



other than modified natural streams 

unless constructed for navigation or 

boat access. 

(ii) Manmade ponds and lakes that are 

located outside natural drainage ways. 

(iii) Ephemeral (stormwater) streams. 

(b) EXEMPTION WHEN EXISTING USES 

ARE PRESENT AND ONGOING. This Rule 

shall not apply to portions of the riparian buffer 

where a use is existing and ongoing according 

to the following: 

(i) A use shall be considered existing if it 

was present within the riparian buffer as 

of January 1, 2000. Existing uses shall 

include, but not be limited to, 

agriculture, buildings, industrial 

facilities, commercial areas, 

transportation facilities, maintained 

lawns, utility lines and on-site sanitary 

sewage systems. Only the portion of the 

riparian buffer that contains the 

footprint of the existing use is exempt 

from this Rule. Activities necessary to 

maintain uses are allowed provided that 

no additional vegetation is removed 

from Zone I, except that grazed or 

trampled by livestock, and existing 

diffuse flow is maintained. Grading and 

revegetating Zone 2 is allowed provided 

that the health of the vegetation in Zone 

1 is not compromised, the ground is 

stabilized and existing diffuse flow is 

maintained. 

(ii) At the time an existing use is proposed 

to be converted to another use, this Rule 

shall apply. An existing use shall be 

considered to be converted to another 

use if any of the following applies: 

(A) Impervious surface is added to 
the riparian buffer in locations 
where it did not exist previously. 

(B) An agricultural operation within 
the riparian buffer is converted 
to a non-agricultural use. 

(C) A lawn within the riparian buffer 
ceases to be maintained. 

(4) ZONES OF THE RIPARIAN BUFFER. The 
protected riparian buffer shall have two zones as 
follows: 

(a) Zone 1 shall consist of a vegetated area that is 

undisturbed except for uses provided for in 

Item (6) of this Rule. The location of Zone 1 

shall be as follows: 

(i) For intermittent and perennial streams. 

Zone 1 shall begin at the most landward 

limit of the top of bank or the rooted 

herbaceous vegetation and extend 

landward a distance of 30 feet on all 



sides of the surface water, measured 
horizontally on a line perpendicular to 
the surface water, 
(ii) For ponds, lakes and reservoirs located 
within a natural drainage way. Zone 1 
shall begin at the most landward limit of 
the normal water level or the rooted 
herbaceous vegetation and extend 
landward a distance of 30 feet, 
measured horizontally on a line 
perpendicular to the surface water, 
(iii) For surface waters within the 20 Coastal 
Counties (defined in 15A NCAC 2B 
.0202) within the jurisdiction of the 
Division of Coastal Management, Zone 
I shall begin at the most landward limit 
of: 

(A) the normal high water level; 

(B) the normal water level; or 

(C) the landward limit of coastal 
weflands as defined by the 
Division of Coastal Management 
and extend landward a distance 
of 30 feet, measured horizontally 
on a line perpendicular to the 
surface water, whichever is more 
restrictive. 

(b) Zone 2 shall consist of a stable, vegetated area 
that is undisturbed except for activities and 
uses provided for in Item (6) of this Rule. 
Grading and revegetating Zone 2 is allowed 
provided that the health of the vegetation in 
Zone 1 is not compromised. Zone 2 shall begin 
at the outer edge of Zone 1 and extend 
landward 20 feet as measured horizontally on a 
line perpendicular to the surface water. The 
combined width of Zones 1 and 2 shall be 50 
feet on all sides of the surface water. 

(5) DIFFUSE FLOW REQUIREMENT. Diffuse flow of 
runoff shall be maintained in the riparian buffer by 
dispersing concentrated flow and reestablishing 
vegetation. 

(a) Concentrated runoff from new ditches or 
manmade conveyances shall be converted to 
diffuse flow before the runoff enters Zone 2 of 
the riparian buffer. 

(b) Periodic corrective action to restore diffuse 
flow shall be taken if necessary to impede the 
formation of erosion gulUes. 

(6) TABLE OF USES. The following chart sets out the 
uses and their designation under this Rule as exempt, 
allowable, allowable wath mitigation, or prohibited. 
The requirements for each category are given in Item 
(7) of this Rule. 



1727 



NORTH CAROLINA REGISTER 



April 3, 2000 



14:19 



APPROVED RULES 





Exempt 


Allowable 


Allowable 

with 

Mitigation 


Prohibited 


Airport facilities: 

• Airport facilities that impact equal to or less than 150 
linear feet or one-third of an acre of riparian buffer 

• Airport facilities that impact greater than 150 linear feet or 
one-third of an acre of riparian buffer 




X 


X 




Archaeological activities 


X 








Bridges 




X 






Dam maintenance activities 


X 








Drainage ditches, roadside ditches and stormwater outfalls 
through riparian buffers: 

• Existing drainage ditches, roadside ditches, and 
stormwater outfalls provided that they are managed to 
minimize the sediment, nutrients and other pollution that 
convey to waterbodies 

• New drainage ditches, roadside ditches and stormwater 
outfalls provided that a stormwater management facility is 
installed to control nitrogen and attenuate flow before the 
conveyance discharges through the riparian buffer 

• New drainage ditches, roadside ditches and stormwater 
outfalls that do not provide control for nitrogen before 
discharging through the riparian buffer 

• Excavation of the streambed in order to bring it to the 
same elevation as the invert of a ditch 


X 


X 




X 

X 


Drainage of a pond in a natural drainage way provided that a 
new riparian buffer that meets the requirements of Items (4) 
and (5) is established adjacent to the new channel 


X 








Driveway crossings of streams and other surface waters subject 

to this Rule: 

Driveway crossings on single family residential lots that disturb 

equal to or less than 25 linear feet or 2,500 square feet of 

riparian buffer 

Driveway crossings on single family residential lots that disturb 

greater than 25 linear feet or 2,500 square feet of riparian buffer 

In a subdivision that cumulatively disturb equal to or less than 

1 50 linear feet or one-third of an acre of riparian buffer 

In a subdivision that cumulatively disturb greater than 1 50 

linear feet or one-third of an acre of riparian buffer 


X 


X 
X 


X 




Fences provided that disturbance is minimized and 
installation does not result in removal of forest vegetation 


X 








Forest harvesting - see Item (11) of this Rule 










Fertilizer application: 

One-time fertilizer application to establish replanted 

vegetation 

• Ongoing fertilizer application 


X 






X 


Grading and revegetation in Zone 2 only provided that diffuse 
flow and the health of existing vegetation in Zone 1 is not 
compromised and disturbed areas are stabilized 


X 








Greenway / hiking trails 




X 










14:19 



NORTH CAROLINA REGISTER 



April 3, 2000 



1728 



APPROVED RULES 



Historic preservation 


X 








Landfills as defined by G.S 130A-290. 








X 


Mining activities: 

• Mining activities that are covered by the Mining Act 
provided that new riparian buffers that meet the 
requirements of Items (4) and (5) are established adjacent to 
the relocated channels 

• Mining activities that are not covered by the Mining Act 
OR where new riparian buffers that meet the requirements 
or Items (4) and (5) are not established adjacent to the 
relocated channels 

Wastewater or mining dewatering wells with approved 
NPDES permit 


X 


X 


X 




Non-electric utility lines: 

• Impacts other than perpendicular crossings in Zone 2 only^ 

• Impacts other than perpendicular crossings in Zone I^ 




X 


X 




Non-electric utility line perpendicular crossings of streams 
and other surface waters subject to this Rule^ 

• Perpendicular crossings that disturb equal to or less than 40 
linear feet of riparian buffer with a maintenance corridor 
equal to or less than 10 feet in width 

Perpendicular crossings that disturb equal to or less than 40 
linear feet of riparian buffer with a maintenance corridor 
greater than 1 feet in width 

• Perpendicular crossings that disturb greater than 40 linear 
feet but equal to or less than 150 linear feet of riparian buffer 
with a maintenance corridor equal to or less than 10 feet in 
width 

• Perpendicular crossings that disturb greater than 40 linear 
feet but equal to or less than 1 50 linear feet of riparian buffer 
with a maintenance corridor greater than 10 feet in width 

• Perpendicular crossings that disturb greater than 1 50 linear 
feet of riparian buffer 


X 


X 
X 


X 
X 




On-site sanitary sewage systems - new ones that use ground 
absorption 








X 


Overhead electric utility lines: 

• Impacts other than perpendicular crossings in Zone 2 oniy 

• Impacts other than perpendicular crossings in Zone 1 '-^'^ 


X 
X 








Overhead electric utility line perpendicular crossings of 
streams and other surface waters subject to this Rule': 

• Perpendicular crossings that disturb equal to or less than 
1 50 linear feet of riparian buffer ' 

• Perpendicular crossings that disturb greater than 1 50 linear 
feet of riparian buffer ''^ 


X 


X 






Periodic maintenance of modified natural streams such as 
canals and a grassed travelway on one side of the surface 
water when alternative forms of maintenance access are not 
practical 




X 







Provided that, in Zone 1 , all of the following BMPs for overhead utihty lines are used. If all of these BMPs are not used, then the overhead 
utility lines shall require a no practical alternative evaluation by the Division. 
• A minimum zone of 1 feet wide immediately adjacent to the water body shall be managed such that only vegetation that poses a 



1729 



NORTH CAROLINA REGISTER 



Aprils, 2000 



14:19 



APPROVED RULES 



hazard or has the potential to grow tall enough to interfere with the line is removed. 

• Woody vegetation shall be cleared by hand. No land grubbing or grading is allowed. 

• Vegetative root systems shall be left intact to maintain the integrity of the soil. Stumps shall remain where trees are cut 

• Rip rap shall not be used unless it is necessary to stabilize a tower. 

• No fertilizer shall be used other than a one-time application to re-establish vegetation. 

• Construction activities shall minimize the removal of woody vegetation, the extent of the disturbed area, and the time in which areas 
remain in a disturbed state. 

• Active measures shall be taken after construction and during routine maintenance to ensure diflFLise flow of stormwater through the 
buffer. 

• In wetlands, mats shall be utilized to minimize soil disturbance. 

^ Provided that poles or towers shall not be installed within 10 feet of a water body unless the Division completes a no practical alternative 

evaluation. 

' Perpendicular crossings are those that intersect the surface water at an angle between 75° and 105 °. 





Exempt 


Allowable 


Allowable 

with 

Mitigation 


Prohibited 


Playground equipment: 

• Playground equipment on single family lots provided that 
installation and use does not result in removal of vegetation 

• Playground equipment installed on lands other than single- 
family lots or that requires removal of vegetation 


X 


X 






Ponds in natural drainage ways, excluding dry ponds: 

• New ponds provided that a riparian buffer that meets the 
requirements of Items (4) and (5) is established adjacent to the 
pond 

• New ponds where a riparian buffer that meets the 
requirements of Items (4) and (5) is NOT established adjacent 
to the pond 




X 


X 




Protection of existing structures, facilities and streambanks 
when this requires additional disturbance of the riparian 
buffer or the stream channel 




X 






Railroad impacts other than crossings of streams and other 
surface waters subject to this Rule. 






X 




Raih-oad crossings of streams and other surface waters 
subject to this Rule: 

• Railroad crossings that impact equal to or less than 40 
linear feet of riparian buffer 

• Railroad crossings that impact greater than 40 linear feet 
but equal to or less than 1 50 linear feet or one-third of an acre 
of riparian buffer 

• Railroad crossings that impact greater than 1 50 linear feet 
or one-third of an acre of riparian buffer 


X 


X 


X 




Removal of previous fill or debris pro^/ided that diffiise flow 
is maintained and any vegetation removed is restored 


X 








Road impacts other than crossings of streams and other 
surface waters subject to this Rule 






X 





14:19 



NORTH CAROLINA REGISTER 



April 3, 2000 



1730 



APPROVED RULES 



Road crossings of streams and other surface waters subject to 
this Rule: 

• Road crossings that impact equal to or less than 40 linear 
feet of riparian buffer 

• Road crossings that impact greater than 40 linear feet but 
equal to or less than 1 50 linear feet or one-third of an acre of 
riparian buffer 

• Road crossings that impact greater than 1 50 linear feet or 
one-third of an acre of riparian buffer 


X 


X 


X 




Scientific studies and stream gauging 


X 








Stormwater management ponds excluding dry ponds: 

•New stormwater management ponds provided that a riparian 

buffer that meets the requirements of Items (4) and (5) is 

established adjacent to the pond 

•New stormwater management ponds where a riparian buffer 

that meets the requirements of Items (4) and (5) is NOT 

established adjacent to the pond 




X 


X 




Stream restoration 


X 








Streambank stabilization 




X 






Temporary roads: 

•Temporary roads that disturb less than or equal to 2,500 
square feet provided that vegetation is restored within six 
months of initial disturbance 

• Temporary roads that disturb greater than 2,500 square feet 
provided that vegetation is restored within six months of 
initial disturbance 

• Temporary roads used for bridge construction or 
replacement provided that restoration activities such as soil 
stabilization and revegetation, occur immediately after 
construction 


X 


X 

X 






Temporary sediment and erosion control devices: 

• In Zone 2 only provided that the vegetation in Zone 1 is not 
compromised and that discharge is released as diffuse flow 
in accordance with Item (5) 

• In Zones 1 and 2 to control impacts associated with uses 
approved by the Division or that have received a variance 
provided that sediment and erosion control for upland areas 
is addressed to the maximum extent practical outside the 
buffer 

• In-stream temporary erosion and sediment control 
measures for work within a stream channel 


X 
X 


X 






Underground electric utility lines: 

• Impacts other than perpendicular crossings in Zone 2 only 

• Impacts other than perpendicular crossings in Zone 1" 


X 
X 








Underground electric utility line perpendicular crossings of 
streams and other surface waters subject to this Rule: 

• Perpendicular crossings that disturb less than or equal to 40 
linear feet of riparian buffer" 

• Perpendicular crossings that disturb greater than 40 linear 
feet of riparian buffer" 


X 


X 







" Provided that, in Zone 1, all of the following BMPs for underground utility lines are used. If all of these BMPs are not used, then the 
underground utility line shall require a no practical alternative evaluation by the Division. 
• Woody vegetation shall be cleared by hand. No land grubbing or grading is allowed. 



1731 



NORTH CAROLINA REGISTER 



April 3, 2000 



14:19 



APPROVED RULES 



• Vegetative root systems shall be left intact to maintain the integrity of the soil. Stumps shall remain, except in the trench, where trees are 
cut. 

• Underground cables shall be installed by vibratory plow or trenching. 

• The trench shall be backfilled with the excavated soil material immediately following cable installation. 

• No fertilizer shall be used other than a one-time application to re-establish vegetation. 

• Construction activities shall minimize the removal of woody vegetation, the extent of the disturbed area, and the time in which areas remain 
in a disturbed state. 

• Active measures shall be taken after construction and during routine maintenance to ensure difflise flow of stormwater through the buffer. 

• In wetlands, mats shall be utilized to minimize soil disturbance. 





Exempt 


Allowable 


Allowable 

with 

Mitigation 


Prohibited 


Vegetation management: 

• Emergency fire control measures provided that topography 
is restored 

• Periodic mowing and harvesting of plant products in Zone 
2 only 

• Planting vegetation to enhance the riparian buffer 

• Pruning forest vegetation provided that the health and 
fiinction of the forest vegetation is not compromised 

• Removal of individual trees which are in danger of causing 
damage to dwellings, other structures or human life 

• Removal or poison ivy 

• Removal of understory nuisance vegetation as defined in: 
Smith, Cherri L. 1998. Exotic Plant Guidelines. Dept. of 
Environment and Natural Resources. Division of Parks and 
Recreation. Raleigh, NC. Guideline #30 


X 

X 

X 
X 

X 

X 
X 








Water dependent structures as defined in 1 5 A NCAC 2B 
.0202 




X 






Water supply reservoirs: 

• New reservoirs provided that a riparian buffer that meets 
the requirements of Items (4) and (5) is established adjacent to 
the reservoir 

• New reservoirs where a riparian buffer that meets the 
requirements of Items (4) and (5) is NOT established adjacent 
to the reservoir 




X 


X 




Water wells 


X 








Wetland restoration 


X 









(7) REQUIREMENTS FOR CATEGORIES OF USES. 
Uses designated as exempt, allowable, allowable with 
mitigation and prohibited in Item (6) of this Rule shall 
have the following requirements: 

(a) EXEMPT. Uses designated as exempt are 
allowed within the riparian buffer. Exempt 
uses shall be designed, constructed and 
maintained to minimize soil disturbance and to 
provide the maximum water quality protection 
practicable. In addition, exempt uses shall 
meet requirements listed in Item (6) of this 
Rule for the specific use. 

(b) ALLOWABLE. Uses designated as allowable 
may proceed within the riparian buffer 
provided that there are no practical alternatives 
to the requested use pursuant to Item (8) of this 



Rule. These uses require written authorization 
from the Division or the delegated local 
authority. 

(c) ALLOWABLE WITH MITIGATION. Uses 
designated as allowable vWth mitigation may 
proceed within the riparian buffer provided that 
there are no practical altematives to the 
requested use pursuant to Item (8) of this Rule 
and an appropriate mitigation strategy has been 
approved pursuant to Item (10) of this Rule. 
These uses require written authorization from 
the Division or the delegated local authority. 

(d) PROHIBITED. Uses designated as prohibited 
may not proceed within the riparian buffer 
unless a variance is granted pursuant to Item 
(9) of this Rule. Mitigation may be required as 



14:19 



NORTH CAROLINA REGISTER 



April 3, 2000 



1732 



APPROVED RULES 



one condition of a variance approval. 
(8) DETERMINATION OF "NO PRACTICAL 
ALTERNATIVES." Persons who wish to undertake 
uses designated as allowable or allowable with 
mitigation shall submit a request for a "no practical 
alternatives" determination to the Division or to the 
delegated local authority. The applicant shall certify 
that the criteria identified in Sub-Item (8)(a) of this 
Rule are met. The Division or the delegated local 
authority shall grant an Authorization Certificate upon 
a "no practical alternatives" determination. The 
procedure for making an Authorization Certificate 
shall be as follows: 

(a) For any request for an Authorization 
Certificate, the Division or the delegated local 
authority shall review the entire project and 
make a finding of fact as to whether the 
following requirements have been met in 
support of a "no practical alternatives" 
determination: 

(i) The basic project purpose cannot be 
practically accomplished in a manner 
that would better minimize disturbance, 
preserve aquatic life and habitat, and 
protect water quality. 

(ii) The use cannot practically be reduced in 
size or density, reconfigured or 
redesigned to better minimize 
disturbance, preserve aquatic life and 
habitat, and protect water quality. 

(iii) Best management practices shall be 
used if necessary to minimize 
disturbance, preserve aquatic life and 
habitat, and protect water quality. 

(b) Requests for an Authorization Certificate shall 
be reviewed and either approved or denied 
within 60 days of receipt of a complete 
submission based on the criteria in Sub-Item 
(8)(a) of this Rule by either the Division or the 
delegated local authority. Failure to issue an 
approval or denial within 60 days shall 
constitute that the applicant has demonstrated 
"no practical alternatives." The Division or the 
delegated local authority may attach conditions 
to the Authorization Certificate that support the 
purpose, spirit and intent of the riparian buffer 
protection program. Complete submissions 
shall include the following: 

(i) The name, address and phone number 

of the applicant; 
(ii) The nature of the activity to be 

conducted by the applicant; 
(iii) The location of the activity, including 

the jurisdiction; 
(iv) A map of sufficient detail to accurately 

delineate the boundaries of the land to 

be utilized in carrying out the activity. 



the location and dimensions of any 
disturbance in riparian buffers 
associated with the activity, and the 
extent of riparian buffers on the land; 
(v) An explanation ofwhy this plan for the 
activity cannot be practically 
accomplished, reduced or reconfigured 
to better minimize disturbance to the 
riparian buffer, preserve aquatic life and 
habitat and protect water quality; and 
(vi) Plans for any best management practices 
proposed to be used to control the 
impacts associated with the activity, 
(c) Any disputes over determinations regarding 
Authorization Certificates shall be referred to 
the Director for a decision. The Director's 
decision is subject to review as provided in 
Articles 3 and 4 of G.S. 1 508. 
(9) VARIANCES. Persons who wish to undertake uses 
designated as prohibited may pursue a variance. The 
Division or the appropriate delegated local authority 
may grant minor variances. The variance request 
procedure shall be as follows: 
(a) For any variance request, the Division or the 
delegated local authority shall make a finding 
of fact as to whether the following 
requirements have been met: 
(i) There are practical difficulties or 
unnecessary hardships that prevent 
compliance with the strict letter of the 
riparian buffer protection requirements. 
Practical difficulties or unnecessary 
hardships shall be evaluated in 
accordance with the following: 

(A) If the applicant complies with 
the provisions of this Rule, 
he/she can secure no reasonable 
return from, nor make 
reasonable use of, his/her 
property. Merely proving that 
the variance would permit a 
greater profit from the property 
shall not be considered adequate 
justification for a variance. 
Moreover, the Division or 
delegated local authority shall 
consider whether the variance is 
the minimum possible deviation 
fi-om the terms of this Rule that 
shall make reasonable use of the 
property possible. 

(B) The hardship results fi^om 
application of this Rule to the 
property rather than from other 
factors such as deed restrictions 
or other hardship. 

(C) The hardship is due to the 



1733 



NORTH CAROLINA REGISTER 



April 3, 2000 



14:19 



APPROVED RULES 



physical nature of the applicant's 
property, such as its size, shape, 
or topography, which is different 
from that of neighboring 
property. 

(D) The applicant did not cause the 
hardship by knowingly or 
unknowingly violating this Rule. 

(E) The applicant did not purchase 
the property after the effective 
date of this Rule, and then 
request an appeal. 

(F) The hardship is unique to the 
applicant's property, rather than 
the resuh of conditions that are 
widespread. If other properties 
are equally subject to the 
hardship created in the 
restriction, then granting a 
variance would be a special 
privilege denied to others, and 
would not promote equal j ustice; 

(ii) The variance is in harmony with the 
general purpose and intent of the State's 
riparian buffer protection requirements 
and preserves its spirit; and 
(iii) In granting the variance, the public 
safety and welfare have been assured, 
water quality has been protected, and 
substantial justice has been done. 

(b) MINOR VARIANCES. A minor variance 
request pertains to activities that are proposed 
only to impact any portion of Zone 2 of the 
riparian buffer. Minor variance requests shall 
be reviewed and approved based on the criteria 
in Sub-Item (9)(a) of this Rule by the either the 
Division or the delegated local authority 
pursuant to G.S. 153A-Article 18, or G.S. 
160A- Article 19. The Division or the 
delegated local authority may attach conditions 
to the variance approval that support the 
purpose, spirit and intent of the riparian buffer 
protection program. Requests for appeals of 
decisions made by the Division shall be made 
to the Office of Administrative Hearings. 
Request for appeals made by the delegated 
local authority shall be made to the appropriate 
Board of Adjustment under G.S. 1 60A-388 or 
G.S. 153A-345. 

(c) MAJOR VARIANCES. A major variance 
request pertains to activities that are proposed 
to impact any portion of Zone 1 or any portion 
of both Zones 1 and 2 of the riparian buffer. If 
the Division or the delegated local authority has 
determined that a major variance request meets 
the requirements in Sub-Item (9)(a) of this 
Rule, then it shall prepare a preliminary finding 



and submit it to the Commission. Preliminary 

findings on major variance requests shall be 

reviewed by the Commission within 90 days 

after receipt by the Director. Requests for 

appeals of determinations that the 

requirements of Sub-Item (9)(a) of this 

Paragraph have not been met shall be made to 

the Office of Administrative Hearings for 

determinations made by the Division or the 

appropriate Board of Adjustments under G.S. 

160A-388 or G.S. I53A-345 for 

determinations made by the delegated local 

authority. The purpose of the Commission's 

review is to determine if it agrees that the 

requirements in Sub-Item (9)(a) of this Rule 

have been met. Requests for appeals of 

decisions made by the Commission shall be 

made to the Office of Administrative Hearings. 

The following actions shall be taken depending 

on tlie Commission's decision on the major 

variance request: 

(i) Upon the Commission's approval, the 

Division or the delegated local authority 

shall issue a final decision granting the 

major variance. 

(ii) Upon the Commission's approval with 

conditions or stipulations, the Division 

or the delegated local authority shall 

issue a final decision, which includes 

these conditions or stipulations. 

(iii) Upon the Commission's denial, the 

Division or the delegated local authority 

shall issue a final decision denying the 

major variance. 

(10) MITIGATION. Persons who wish to undertake uses 
designated as allowable with mitigation shall meet the 
following requirements in order to proceed with their 
proposed use. 

(a) Obtain a determination of "no practical 
altematives" to the proposed use pursuant to 
Item (8) of this Rule. 

(b) Obtain approval for a mitigation proposal 
pursuant to 15A NCAC 2B .0260. 

(11) REQUIREMENTS SPECIFIC TO FOREST 
HARVESTING. The following requirements shall 
apply for forest harvesting operations and practices. 

(a) The following measures shall apply in the 
entire riparian buffer: 
(i) Logging decks and sawmill sites shall 

not be placed in the riparian buffer, 
(ii) Access roads and skid trails shall be 
prohibited except for temporary and 
permanent stream crossings established 
in accordance with 15A NCAC II 
.0203. Temporary stream crossings 
shall be permanently stabilized after any 
site disturbing activity is completed. 



14:19 



NORTH CAROLINA REGISTER 



Aprils, 2000 



1734 



APPROVED RULES 



(iii) Timber felling shall be directed away 

from the stream or water body. 

(iv) Skidding shall be directed away from 

the stream or water body and shall be 

done in a manner that minimizes soil 

disturbance and prevents the creation of 

channels or ruts. 

(v) Individual trees may be treated to 

maintain or improve their health, form 

or vigor. 

(vi) Harvesting of dead or infected frees or 

application of pesticides necessary to 

prevent or control extensive tree pest 

and disease infestation shall be allowed. 

These practices must be approved by the 

Division of Forest Resources for a 

specific site. The Division of Forest 

Resources must notify the Division of 

all approvals. 

(vii) Removal of individual trees that are in 

danger of causing damage to structures 

or human life shall be allowed. 

(viii) Natural regeneration of forest vegetation 

and planting of trees, shrubs, or ground 

cover plants to enhance the riparian 

buffer shall be allowed provided that 

soil disturbance is minimized. Plantings 

shall consist primarily of native species. 

(ix) High intensity prescribed bums shall not 

be allowed. 

(x) Application of fertilizer shall not be 

allowed except as necessary for 

permanent stabilization. Broadcast 

application of fertilizer or herbicides to 

the adjacent forest stand shall be 

conducted so that the chemicals are not 

applied directly to or allowed to drift 

into the riparian buffer. 

(b) In Zone 1 , forest vegetation shall be protected 

and maintained. Selective harvest as provided 

for below is allowed on forest lands that have 

a deferment for use value under forestry in 

accordance with G.S. 105-277.2 through G.S. 

277.6 or on forest lands that have a forest 

management plan prepared or approved by a 

registered professional forester. Copies of 

either the approval of the deferment for use 

value under forestry or the forest management 

plan shall be produced upon request. For such 

forest lands, selective harvest is allowed in 

accordance with the following: 

(i) Tracked or wheeled vehicles are not 

permitted except at stream crossings 

designed, constructed and maintained in 

accordance with 15ANCAC 11 .0203. 

(ii) Soil disturbing site preparation activities 

are not allowed. 



(iii) Trees shall be removed with the 
minimum disturbance to the soil and 
residual vegetation. 

(iv) The following provisions for selective 
harvesting shall be met: 

(A) The first 10 feet of Zone 1 
directly adjacent to the stream or 
waterbody shall be undisturbed 
except for the removal of 
individual high value frees as 
defined provided that no frees 
with exposed primary roots 
visible in the streambank be cut 

(B) In the outer 20 feet of Zone 1 , a 
maximum of 50 percent of the 
frees greater than five inches dbh 
may be cut and removed. The 
reentry time for harvest shall be 
no more frequent than every 1 5 
years, except on forest 
plantations where the reentry 
time shall be no more frequent 
than every five years. In either 
case, the trees remaining after 
harvest shall be as evenly spaced 
as possible. 

(C) In Zone 2, harvesting and 
regeneration of the forest stand 
shall be allowed provided that 
sufficient ground cover is 
maintained to provide for 
difftision and infiltration of 
surface runoff 

(12) REQUIREMENTS SPECIFIC TO LOCAL 
GOVERNMENTS WITH STORMWATER 
PROGRAMS FOR NITROGEN CONTROL. Local 
governments in the Tar-Pamlico River Basin that are 
required to have local stormwater programs to control 
nitrogen loading shall have two options for ensuring 
protection of riparian buffers on new developments 
within thefr jurisdictions as follows. 

(a) Obtain authority to implement a local riparian 
buffer protection program pursuant to 15A 
NCAC2B.0261. 

(b) Refrain from issuing local approvals for new 
development projects unless either: 

(i) The person requesting the approval does 
not propose to impact the riparian buffer 
of a surface water that appears on either 
the most recent versions of the soil 
survey maps prepared by the Natural 
Resources Conservation Service of the 
United States Department of Agriculture 
or the most recent versions of the 
1 :24,000 scale (7.5 minute quadrangle) 
topographic maps prepared by the 
United States Geologic Survey (USGS). 



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(ii) The person requesting the approval 
proposes to impact the riparian buffer of 
a surface water that appears on the maps 
described in Sub-Item (12)(b)(i) of this 
Paragraph and either: 

(A) Has received an on-site 
determination from the Division 
pursuant to Sub-Item (3)(a) of 
this Rule that surface waters are 
not present; 

(B) Has received an Authorization 
Certificate from the Division 
pursuant to Item (8) of this Rule 
for uses designated as Allowable 
under this Rule; 

(C) Has received an Authorization 
Certificate from the Division 
pursuant to Item (8) of this Rule 
and obtained the Division's 
approval on a mitigation plan 
pursuant to Item (10) of this 
Rule for uses designated as 
Allowable with Mitigation under 
this Rule; or 

(D) Has received a variance from the 
Commission pursuant to Item (9) 
of this Rule. 

(13) OTHER LAWS, REGULATIONS AND PERMITS. 
In all cases, compliance with this Rule does not 
preclude the requirement to comply with all federal, 
state and local regulations and laws. 

Authority G.S. ] 43-2 14. 1; 143-214.7; 143-2 15.3(a)(1); 143- 
215.6A; 143-21 5.6B; 143-215.6C; 143B-282(d); S.L 1999-329, 
s. 7.1; 
Eff August 1,2000. 

SUBCHAPTER 2D - AIR POLLUTION CONTROL 
REQUIREMENTS 

SECTION .1200 - CONTROL OF EMISSIONS FROM 
INCINERATORS 

.1202 DEFINITIONS 

For the purposes of this Section, the following definitions shall 
apply: 

(1) "Co-fired combustor (as defined in 40 CFR Part 60, 
Subpart Ec)" means a unit combusting hospital, 
medical, or infectious waste with other fiiels or wastes 
(e.g., coal, municipal solid waste) and subject to an 
enforceable requirement limiting the unit to 
combusting a fiiel feed stream, 10 percent or less of 
the weight of which is comprised, in aggregate, of 
hospital, medical, or infectious waste as measured on 
a calendar quarter basis. For the purposes of this 
definition, pathological waste, chemotherapeutic 
waste, and low-level radioactive waste are considered 



(2) 
(3) 

(4) 
(5) 

(6) 



(7) 



(8) 



(9) 



(10) 



"other" wastes when calculating the percentage of 
hospital, medical, or infectious waste combusted. 
"Crematory incinerator" means any incinerator located 
at a crematory regulated under 21 NCAC 34C that is 
used solely for the cremation of human remains. 
"Construction and demolition waste" means wood, 
paper, and other combustible waste resulting from 
construction and demolition projects except for 
hazardous waste and asphaltic material. 
"Dioxin and Furan" means tetra- through octa- 
chlorinated dibenzo-p-dioxins and dibenzofiirans. 
"Hazardous waste incinerator" means an incinerator 
regulated under 15A NCAC 13A .0101 through 
.0119, 40 CFR 264.340 to 264.351, Subpart O, or 
265.340 to 265.352, Subpart O. 
"Hospital, medical and infectious waste incinerator 
(HMFWI)" means any device that combusts any 
amount of hospital, medical and infectious waste in 
which construction was commenced on or before June 
20, 1996. 
"Large HMIWI" means: 

(a) Except as provided in Sub-item (b) of this 
Item: 

(i) a HMIWI whose maximum design 
waste burning capacity is more than 500 
pounds per hour; 
(ii) a continuous or intermittent HMIWI 
whose maximum charge rate is more 
than 500 pounds per hour; or 
(iii) a batch HMIWI whose maximum 
charge rate is more than 4,000 pounds 
per day. 

(b) The following are not large HMFWIs: 

(i) a continuous or intermittent HMIWI 
whose maximum charge rate is less than 
or equal to 500 pounds per hour; or 
(ii) a batch HMIWI whose maximum 
charge rate is less than or equal to 4,000 
pounds per day. 
"Hospital waste" means discards generated at a 
hospital, except unused items returned to the 
manufacturer. The definition of hospital waste does 
not include human corpses, remains, and anatomical 
parts that are intended for interment or cremation. 
"Large municipal waste combustor" means each 
municipal waste combustor unit with a combustion 
capacity greater than 250 tons per day of municipal 
solid waste for which constmction was commenced on 
or before September 20, 1 994. 
"Medical and Infectious Waste" means any waste 
generated in the diagnosis, treatment, or immunization 
of human beings or animals, in research pertaining 
thereto, or in the production or testing of biologicals 
that is listed in Sub-items (a)(i) through (vii) of this 
Item, 
(a) The definition of medical and infectious waste 



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1736 



APPROVED RULES 



includes: 
(i) cultures and stocks of infectious agents 
and associated biologicals, including: 

(A) cultures from medical and 
pathological laboratories; 

(B) cultures and stocks of infectious 
agents from research and 
industrial laboratories; 

(C) wastes from the production of 
biologicals; 

(D) discarded live and attenuated 
vaccines; and 

(E) culture dishes and devices used 
to transfer, inoculate, and mix 
cultures; 

(ii) human pathological waste, including 
tissues, organs, and body parts and body 
fluids that are removed during surgery 
or autopsy, or other medical procedures, 
and specimens of body fluids and their 
containers; 

(iii) human blood and blood products 
including: 

(A) liquid waste human blood; 

(B) products of blood; 

(C) items saturated or dripping with 
human blood; or 

(D) items that were saturated or 
dripping with human blood that 
are now caked with dried human 
blood including serum, plasma, 
and other blood components, 
and their containers, which were 
used or intended for use in either 
patient care, testing and 
laboratory analysis or the 
development of pharmaceuticals. 
Intravenous bags are also 
included in this category; 

(iv) sharps that have been used in animal or 
human patient care or treatment or in 
medical, research, or industrial 
laboratories, including hypodermic 
needles, syringes (with or without the 
attached needle), pasteur pipettes, 
scalpel blades, blood vials, needles witli 
attached tubing, and culture dishes 
(regardless of presence of infectious 
agents). Also included are other types 
of broken or unbroken glassware that 
were in contact with infectious agents, 
such as used slides and cover slips; 

(v) animal waste including contaminated 
animal carcasses, body parts, and 
bedding of animals that were known to 
have been exposed to infectious agents 



(11) 



during research (including research in 
veterinary hospitals), production of 
biologicals or testing of 
pharmaceuticals; 

(vi) isolation wastes including biological 
waste and discarded materials 
contaminated with blood, excretions, 
exudates, or secretions from humans 
who are isolated to protect others from 
certain highly communicable diseases, 
or isolated animals known to be infected 
with highly communicable diseases; and 

(vii) unused sharps including the following 
unused or discarded sharps; 

(A) hypodermic needles; 

(B) suture needles; 

(C) syringes; and 

(D) scalpel blades. 

(b) The definition of medical and infectious waste 
does not include: 
(i) hazardous waste identified or listed 

under 40 CFR Part 261; 
(ii) household waste, as defined in 40 CFR 

Part 261.4(b)(1); 
(iii) ash from incineration of medical and 

infectious waste, once the incineration 

process has been completed; 
(iv) human corpses, remains, and anatomical 

parts that are intended for interment or 

cremation; and 
(v) domestic sewage materials identified in 

40 CFR 261.4(a)(1). 
"Medium HMFWl" means: 

(a) Except as provided in Sub-item (b) of this 
Item: 

(i) a HMFWI whose maximum design 
waste burning capacity is more than 200 
pounds per hour but less than or equal 
to 500 pounds per hour; 

(ii) a continuous or intermittent HMFWI 
whose maximum charge rate is more 
than 200 pounds per hour but less than 
or equal to 500 pounds per hour; or 

(iii) a batch HMIWI whose maximum 
charge rate is more than 1 ,600 pounds 
per day but less than or equal to 4,000 
pounds per day. 

(b) The following are not medium HMIWIs: 

(i) a continuous or intermittent HMIWI 
whose maximum charge rate is less than 
or equal to 200 pounds per hour or more 
than 500 pounds per hour; or 

(ii) a batch HMIWI whose maximum 
charge rate is more than or equal to 
4,000 pounds per day or less than or 
equal to 1 ,600 pounds per day. 



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APPROVED RULES 



(12) 

(13) 
(14) 



(15) 

(16) 
(17) 



(18) 
(19) 

(20) 



(21) 



"Municipal waste combustor (MWC) or municipal 
waste combustor unit" means a municipal waste 
combustor as defined in 40 CFR 60.51b. 
"Municipal waste combustor plant" means one or 
more designated units at the same location. 
"Municipal waste combustor unit capacity" means the 
maximum charging rate of a municipal waste 
combustor unit expressed in tons per day of municipal 
solid waste combusted, calculated according to the 
procedures under 40 CFR 60.58b(j). Section 
60.58b(j) includes procedures for determining 
municipal waste combustor unit capacity for 
continuous and batch feed municipal waste 
combustors. 

"Municipal-type solid waste (MSW) or Municipal 
Solid Waste" means municipal-type solid waste 
defined in 40 CFR 60.51b. 

"POTW" means a publicly owned treatment works as 
defined in 40 CFR 501.2. 

"Same Lxjcation" means the same or contiguous 
property that is under common ownership or control 
including properties that are separated only by a street, 
road, highway, or other public right-of-way. Common 
ownership or control includes properties that are 
owned, leased, or operated by the same entity, parent 
entity, subsidiary, subdivision, or any combination 
thereof including any mimicipality or other 
governmental unit, or any quasi-governmental 
authority (e.g., a public utility district or regional waste 
disposal authority). 

"Sewage sludge incinerator" means any incinerator 
regulated under 40 CFR Part 503, Subpart E. 
"Sludge incinerator" means any incinerator regulated 
under Rule .1110 of this Subchapter but not under 40 
CFR Part 503, Subpart E. 
"Small HMFWI" means: 

(a) Except as provided in Sub-item (b) of this 
Item: 

(i) a HMIWI whose maximum design 
waste burning capacity is less than or 
equal to 200 pounds per hour; 

(ii) a continuous or intermittent HMIWT 
whose maximum charge rate is less than 
or equal to 200 pounds per hour; or 

(iii) a batch HMIWI whose maximum 
charge rate is less than or equal to 1 ,600 
pounds per day. 

(b) The following are not small HMFWIs: 

(i) a continuous or intermittent HMIWI 

whose maximum charge rate is more 

than 200 pounds per hour; or 

(ii) a batch HMFWI whose maximum 

charge rate is more than 1 ,600 pounds 

per day. 

"Small municipal waste combustor" means each 

municipal waste combustor unit with a combustion 

capacity greater than 38.8 tons per day but not more 



than 250 tons per day of municipal solid waste for 
which construction was commenced on or before 
September 20, 1994. 

(22) "Small remote HMIWI" means any small HMIWI 
which is located more than 50 miles from the 
boundary of the nearest Standard Metropolitan 
Statistical Area (SMSA) and which bums less than 
2,000 pounds per week of hospital, medical and 
infectious waste. The 2,000 pound per week 
limitation does not apply during performance tests. 

(23) "Standard Metropolitan Statistical Area (SMSA)" 
means any area listed in Office of Management and 
Budget (0MB) Bulletin No. 93-17, entitled "Revised 
Statistical Defmitions for Metropolitan Areas" dated 
July 30, 1 993. The referenced document cited by this 
Item is hereby incorporated by reference and does not 
include subsequent amendments or editions. A copy 
of this document may be obtained from the Division of 
Air Quality, P.O. Box 29580, Raleigh, North Carolina 
27626-0580 at a cost often cents ($0.10) per page or 
may be obtained through the internet at 
"http://www.census.gov/population/estimates/metro- 
city/93mfips.txt". 

Authority G.S. 143-213; 1 43-2 15.3(a)(1); 
Amended Eff July 1. 2000. 

.1203 HAZARDOUS WASTE INCINERATORS 

(a) Applicability. This Rule applies to hazardous waste 
incinerators. 

(b) Definitions. For the purpose of this Rule, the definitions 
contained in 40 CFR 260.10, 270.2, and 40 CFR 63.1201 shall 
apply in addition to the definitions in Rule .1202 of this Section. 

(c) Emission Standards. 

(1) The emission standards in this Rule apply to all 
incinerators subject to this Rule except where Rule 
.0524, .1110, or .1111 of this Subchapter applies. 
However, in any event. Subparagraphs (8) or (9) of 
this Paragraph and Paragraph (h) of this Rule shall 
control. 

(2) Particulate Matter. Any incinerator subject to this 
Rule shall meet the particulate matter emission 
requirements of 40 CFR 264.343(c). 

(3) Visible Emissions. Any incinerator subject to this 
Rule shall comply with Rule .0521 of this Subchapter 
for the control of visible emissions. 

(4) Sulfiir Dioxide. Any incinerator subject to this Rule 
shall comply with Rule .0516 of this Subchapter for 
the control of sulfiir dioxide emissions. 

(5) Odorous Emissions. Any incinerator subject to this 
Rule shall comply with Rule .0522 of this Subchapter 
for the control of odorous emissions. 

(6) Hydrogen Chloride. Any incinerator subject to this 
Rule shall meet the hydrogen chloride emission 
requirements of 40 CFR 264.343(b). Compliance 
with this Subparagraph shall be determined by 
averaging emissions over a one-hour period. 



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APPROVED RULES 



(7) Mercury Emissions. The emissions of mercury and 
mercury compounds from the stack or chimney of any 
incinerator subject to this Rule shall not exceed 0.032 
pounds per hour. Compliance with this Subparagraph 
shall be determined by averaging emissions over a 
one-hour period. 

(8) Toxic Emissions. The owner or operator of any 
incinerator subject to this Rule shall demonstrate 
compliance with Section .1100 of this Subchapter 
according to 15A NCAC 2Q .0700 for the control of 
toxic emissions. 

(9) Ambient Standards. 

(A) In addition to the ambient air quality standards 
in Section .0400 of this Subchapter, the 
foUovraig ambient air quality standards, which 
are an annual average, in milligrams per cubic 
meter at 77°F (25°C) and 29.92 inches (760 
mm) of mercury pressure and which are 
increments above background concentrations, 
shall apply aggregately to all incinerators at a 
facility subject to this Rule: 

(i) arsenic and its compounds 

2.3x10-' 
(ii) beryllium and its compounds 

4.1x10' 
(iii) cadmium and its compounds 

5.5x10' 
(iv) chromium (VI) and its compoimds 

8.3x10-' 

(B) When Subparagraph ( 1 ) of this Paragraph and 
Rule .0524, .1 1 10, or .1 1 1 1 of this Subchapter 
regulate the same pollutant, the more restrictive 
provision for each pollutant shall apply, 
notwithstanding provisions of Rule .0524, 
.1110, or .1111 of this Subchapter to the 
contrary. 

(C) The owner or operator of a facility with 
incinerators subject to this Rule shall 
demonstrate compliance with the ambient 
standards in Subparts (i) through (iv) of Part 
(A) of this Subparagraph by following the 
procedures set out in Rule .1106 of this 
Subchapter. Modeling demonstrations shall 
comply with the requirements of Rule .0533 of 
this Subchapter. 

(D) The emission rates computed or used under 
Part (C) of this Subparagraph that demonstrate 
compliance with the ambient standards under 
Part (A) of this Subparagraph shall be specified 
as a permit condition for the facility with 
incinerators subject to this Rule as their 
allowable emission limits unless Rule .0524, 
.1110, or .1111 of this Subchapter requires 
more restrictive rates. 

(d) Operational Standards. 
( 1 ) The operational standards in this Rule do not apply to 
any incinerator subject to this Rule when applicable 



operational standards in Rule .0524, . 1 11 0, or . 11 11 of 
this Subchapter apply. 
(2) Hazardous waste incinerators shall comply with 15A 
NCAC I3A .0101 through .0119, which are 
administered and enforced by the Division of Waste 
Management 

(e) Test Methods and Procedures. 

(1) The test methods and procedures described in Rule 
.0501 of this Subchapter and in 40 CFR Part 60 
Appendix A and 40 CFR Part 61 Appendix B shall be 
used to determine compliance with emission rates. 
Method 29 of 40 CFR Part 60 shall be used to 
determine emission rates for metals. However, 
Method 29 shall be used to sample for chromium (VI), 
and SW 846 Method 0060 shall be used for the 
analysis. 

(2) The Director may require the owner or operator to test 
his incinerator to demonstrate compliance with the 
emission standards listed in Paragraph (c) of this Rule. 

(f) Monitoring, Recordkeeping, and Reporting. 

( 1 ) The owner or operator of an incinerator subj ect to the 
requirements of this Rule shall comply with the 
monitoring, recordkeeping, and reporting 
requirements in Section .0600 of this Subchapter, 40 
CFR 270.31, and 40 CFR 264.347. 

(2) The owner or operator of an incinerator subject to the 
requirements of this Rule shall maintain and operate a 
continuous temperature monitoring and recording 
device for the primary chamber and, where there is a 
secondary chamber, for the secondary chamber. The 
owner or operator of an incinerator that has installed 
air pollution abatement equipment to reduce emissions 
of hydrogen chloride shall install, operate, and 
maintain continuous monitoring equipment to measure 
pH for wet scrubber systems and rate of alkaline 
injection for dry scrubber systems. The Director shall 
require the owner or operator of an incinerator with a 
permitted charge rate of 750 pounds per hour or more 
to install, operate, and maintain continuous monitors 
for oxygen or for carbon monoxide or both as 
necessary to determine proper operation of the 
incinerator. The Director may require the owner or 
operator of an incinerator with a permitted charge rate 
of less than 750 pounds per hour to install, operate, 
and maintain monitors for oxygen or for carbon 
monoxide or both as necessary to determine proper 
operation of the incinerator. 

(g) Excess Emissions and Start-up and Shut-down. All 
incinerators subject to this Rule shall comply with Rule .0535, 
Excess Emissions Reporting and Malfimctions, of this 
Subchapter. 

(h) In addition to the requirements of Paragraphs (c) through 
(g) of this Rule, incinerators subject to this Rule shall comply 
with the emission limits, operational specifications, and other 
restrictions or conditions determined by the Division of Waste 
Management under 40 CFR 270.32, establishing Resource 
Conservation and Recovery Act permit conditions, as necessary 



1739 



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APPROVED RULES 



to protect human health and the environmenL 

Authority G.S. 143-2 15.3(a)(1); 143-215. 107(a)(5): 
Amended Eff. July 1, 2000. 

.1204 SEWAGE SLUDGE AND SLUDGE 
INCINERATORS 

(a) AppUcability. This Rule appUes to sewage sludge and 
sludge incinerators. 

(b) Definitions. For the purpose of this Rule, the definitions 
in 40 CFR Part 503 shall apply in addition to the definitions in 
Rule .1202 of this Section. 

(c) Emission Standards. 

(1) The emission standards in this Rule apply to any 
incinerator subject to this Rule except where Rule 
.0524, .1110, or .1111 of this Subchapter applies. 
However, in any event. Subparagraphs (11 ) or ( 1 2) of 
this Paragraph shall control. 

(2) Particulate Matter. Any incinerator subject to this 
Rule shall comply with one of the following emission 
standards for particulate matter: 

(A) For refiise charge rates between 100 and 2000 
pounds per hour, the allowable emissions rate 
for particulate matter from any stack or 
chimney of any incinerator subject to this Rule 
shall not exceed the level calculated with the 
equation E=0.002P, calculated to two 
significant figures, where "E" equals the 
allowable emission rate for particulate matter in 
pounds per hour and "P" equals the refiise 
charge rate in pounds per hour. For refiise 
charge rates of to 100 pounds per hour the 
allowable emission rate is 0.2 pounds per hour. 
For refiise charge rates of 2000 pounds per 
hour or greater the allowable emission rate 
shall be 4.0 pounds per hour. Compliance with 
this Part shall be determined by averaging 
emissions over a block three-hour period. 

(B) Instead of meeting the standards in Part (A) of 
this Subparagraph, the owner or operator of 
any incinerator subject to this Rule may choose 
to limit particulate emissions from the 
incinerator to 0.08 grains per dry standard 
cubic foot corrected to 12 percent carbon 
dioxide. In order to choose this option, the 
owner or operator of the incinerator shall 
demonstrate that the particulate ambient air 
quality standards will not be violated. To 
correct to 12 percent carbon dioxide, the 
measured concentration of particulate matter is 
multiplied by 12 and divided by the measured 
percent carbon dioxide. Compliance with this 
Part shall be determined by averaging 
emissions over a block three-hour period. 

(3) Visible Emissions. Any incinerator subject to this 
Rule shall comply with Rule .0521 of this Subchapter 
for the control of visible emissions. 



(4) SulfiiT Dioxide. Any incinerator subject to this Rule 
shall comply with Rule .0516 of this Subchapter for 
the control of sulfur dioxide emissions. 

(5) Odorous Emissions. Any incinerator subject to this 
Rule shall comply with Rule .0522 of this Subchapter 
for the control of odorous emissions. 

(6) Hydrogen Chloride. Any incinerator subject to this 
Rule shall control hydrogen chloride emissions such 
that they do not exceed four pounds per hour unless 
they are reduced by at least 90 percent by weight or to 
no more than 50 parts per miUion by volume corrected 
to seven percent oxygen (dry basis). Compliance with 
this Subparagraph shall be determined by averaging 
emissions over a one-hour period. 

(7) Mercury Emissions. Emissions of mercury from any 
incinerator subject to this Rule are regulated under 
15ANCAC2D.1110. 

(8) Beryllium Emissions. Emissions of beryllium from 
any incinerator subject to this Rule are regulated under 
15ANCAC2D.1110. 

(9) Lead Emissions. The daily concentration of lead in 
sewage sludge fed to a sewage sludge incinerator shall 
meet the requirements specified in 40 CFR 503.43(c). 

(10) Other Metal Emissions. The daily concentration of 
arsenic, cadmium, chromium, and nickel in sewage 
sludge fed to a sewage sludge incinerator shall meet 
the requirements specified in 40 CFR 503.43(d). 

(11) Toxic Emissions. The owner or operator of any 
incinerator subject to this Rule shall demonstrate 
compliance with Section . 1 1 00 of this Subchapter 
according to 1 5A NCAC 2Q .0700. 

(12) Ambient Standards. 

(A) In addition to the ambient air quality standards 
in Section .0400 of this Subchapter, the 
following ambient air quality standards, which 
are an annual average, in milligrams per cubic 
meter at 77^ (25°C) and 29.92 inches (760 
mm) of mercury pressure and which are 
increments above background concentrations, 
shall apply aggregately to all incinerators at a 
facility subject to this Rule: 

(i) arsenic and its compounds 

2.3x10' 
(ii) beryllium and its compounds 

4.1x10'^ 
(iii) cadmium and its compounds 

5.5x10" 
(iv) chromium (VI) and its compounds 

8.3x10' 

(B) When Subparagraph ( 1 ) of this Paragraph and 
Rule .0524, .1 1 10, or .1 1 1 1 of this Subchapter 
regulate the same pollutant, the more restrictive 
provision for each pollutant shall apply, 
notwithstanding provisions of Rule .0524, 
.1110, or .1111 of this Subchapter to the 
contrary. 

(C) The owner or operator of a facility with 






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1740 



APPROVED RULES 



incinerators subject to this Rule shall 
demonstrate compliance with the ambient 
standards in Subparts (i) through (iv) of Part 
(A) of this Subparagraph by following the 
procedures set out in Rule . 1 1 06 of this 
Subchapter. Modeling demonstrations shall 
comply with the requirements of Rule .0533 of 
this Subchapter. 
(D) The emission rates computed or used under 
Part (C) of this Subparagraph that demonstrate 
compliance with the ambient standards under 
Part (A) of this Subparagraph shall be specified 
as a permit condition for the facility with 
incinerators subject to this Rule as their 
allowable emission limits unless Rule .0524, 
.1110, or .1111 of this Subchapter requires 
more restrictive rates, 
(d) Operational Standards. 

(1 ) The operational standards in this Rule do not apply to 
any incinerator subject to this Rule when applicable 
operational standards in Rule .0524, . 1 1 1 0, or . 1 1 1 1 of 
this Subchapter apply. 

(2) Sewage Sludge Incinerators. 

(A) The maximum combustion temperature for a 
sewage sludge incinerator shall be specified as 
a permit condition and be based on information 
obtained during the performance test of the 
sewage sludge incinerator to determine 
pollutant control efficiencies as needed to 
comply with .1204(c). 

(B) The values for the operational parameters for 
the sewage sludge incinerator air pollution 
control device(s) shall be specified as a permit 
condition and be based on information 
obtained during the performance test of the 
sewage sludge incinerator to determine 
pollutant control efficiencies as needed to 
comply with .1204(c). 

(C) The monthly average concentration for total 
hydrocarbons, or carbon monoxide as provided 
in 40 CFR 503.40(c), in the exit gas from a 
sewage sludge incinerator stack, corrected to 
zero percent moisture and seven percent 
oxygen as specified in 40 CFR 503.44, shall 
not exceed 100 parts per million on a 
volumetric basis using the continuous emission 
monitor required in Part (f)(3)(A) of this Rule. 

(3) Sludge Incinerators. The combustion temperature in 
a sludge incinerator shall not be less than 1200°F. The 
maximum oxygen content of the exit gas from a 
sludge incinerator stack shall be: 

(A) 12 percent (dry basis) for a multiple hearth 
sludge incinerator, 

(B) seven percent (dry basis) for a fluidized bed 
sludge incinerator, 

(C) nine percent (dry basis) for an electric sludge 
incinerator, and 



(D) 12 percent (dry basis) for a rotary kiln sludge 
incinerator. 

(e) Test Methods and Procedures. 

(1) The test methods and procedures described in Rule 
.0501 of this Subchapter and in 40 CFR Part 60 
Appendix A and 40 CFR Part 61 Appendix B shall be 
used to determine compliance with emission rates. 
Method 29 of 40 CFR Part 60 shall be used to 
determine emission rates for metals. However, 
Method 29 shall be used to sample for chromiiun (VI), 
and SW 846 Method 0060 shall be used for the 
analysis. 

(2) The Director may require the owner or operator to test 
his incinerator to demonstrate compliance with the 
emission standards listed in Paragraph (c) of this Rule. 

(3) The owner or operator of a sewage sludge incinerator 
shall perform testing to determine pollutant control 
efficiencies of any pollution control equipment and 
obtain information on operational parameters, 
including combustion temperature, to be specified as 
a permit condition. 

(f) Monitoring, Recordkeeping, and Reporting. 

( 1 ) The owner or operator of an incinerator subject to the 
requirements of this Rule shall comply with the 
monitoring, recordkeeping, and reporting 
requirements in Section .0600 of this Subchapter. 

(2) The owner or operator of an incinerator subject to the 
requirements of this Rule shall maintain and operate a 
continuous temperature monitoring and recording 
device for the primary chamber and, where there is a 
secondary chamber, for the secondary chamber. The 
owner or operator of an incinerator that has installed 
air pollution abatement equipment to reduce emissions 
of hydrogen chloride shall install, operate, and 
maintain continuous monitoring equipment to measure 
pH for wet scrubber systems and rate of alkaline 
injection for dry scrubber systems. The Director shall 
require the owner or operator of an incinerator with a 
permitted charge rate of 750 pounds per hour or more 
to install, operate, and maintain continuous monitors 
for oxygen or for carbon monoxide or both as 
necessary to determine proper operation of the 
incinerator. The Director may require the owner or 
operator of an incinerator with a permitted charge rate 
of less than 750 pounds per hour to install, operate, 
and maintain monitors for oxygen or for carbon 
monoxide or both as necessary to determine proper 
operation of the incinerator. 

(3) In addition to the requirements of Subparagraphs (1) 
and (2) of this Paragraph, the owner or operator of a 
sewage sludge incinerator shall: 

(A) install, operate, and maintain, for each 

incinerator, continuous emission monitors to 

determine the following: 

(i) total hydrocarbon concentration of the 

incinerator stack exit gas according to 

40 CFR 503.45(a) unless the 



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APPROVED RULES 



requirements for continuously 
monitoring carbon monoxide as 
provided in 40 CFR 503.40(c) are 
satisfied; 

(ii) oxygen content of the incinerator stack 
exit gas; and 

(iii) moisture content ofthe incinerator stack 
exit gas; 

(B) monitor the concentration of beryllium and 
mercury from the sludge fed to the incinerator 
at least as frequently as required by Rule .1110 
of this Subchapter but in no case less than once 
per year; 

(C) monitor the concentrations of arsenic, 
cadmium, chromium, lead, and nickel in the 
sewage sludge fed to the incinerator at least as 
frequently as required under 40 CFR 
503.46(a)(2) and (3); 

(D) determine mercury emissions by use of Method 
101 or lOlA of 40 CFR Part 61, Appendix B, 
where applicable to 40 CFR 61 .55(a); 

(E) maintain records of all material required under 
Paragraph (e) of this Rule and this Paragraph 
according to 40 CFR 503.47; and 

(F) for class I sludge management facilities (as 
defined in 40 CFR 503.9), POTWs (as defmed 
in 40 CFR 501 .2) with a design flow rate equal 
to or greater than one million gallons per day, 
and POTWs that serve a population of 10,000 
people or greater, submit the information 
recorded in Part (D) of this Subparagraph to 
the Director on or before February 19 of each 
year. 

(g) Excess Emissions and Start-up and Shut-down. All 
incinerators subject to this Rule shall comply with Rule .0535, 
Excess Emissions Reporting and Malfiinctions, of this 
Subchapter. 

Authority G.S. 143-215.3(a)(l); 143-21 5. 107(a)(4).(5); 
Amended Eff July 1, 2000. 

.1205 MUNICIPAL WASTE COMBUSTORS 

(a) Applicability. TWs Rule applies to: 

(1 ) Small municipal waste combustors, as defmed in rule 
.1202 of this Section, and 

(2) Large municipal waste combustors, as defined in rule 
.1202 of this Section. 

(b) Definitions. For the purpose of this Rule, the definitions 
contained in 40 CFR 60.51b shall apply in addition to the 
definitions in Rule .1202 of this Section. 

(c) Emission Standards. 

(1) The emission standards in this Rule apply to all 
incinerators subject to this Rule except where Rule 
.0524, .1110, or .1111 of this Subchapter applies. 
However, in any event, Subparagraphs (13) or (14) of 
this Paragraph shall control. 



(2) Particulate Matter. 

(A) Emissions of particulate matter from each 
small municipal waste combustor shall not 
exceed 70 milligrams per dry standard cubic 
meter, corrected to seven percent oxygen. 

(B) Emissions of particulate matter from each large 
municipal waste combustor shall not exceed 27 
milligrams per dry standard cubic meter 
corrected to seven percent oxygen. 

(3) Visible Emissions. 

(A) The emission limit for opacity from any 
municipal waste combustor shall not exceed 1 
percent (6-minute average). 

(B) Air curtain burners shall comply with Rule 
.1904 of this Subchapter. 

(4) Sulfrir Dioxide. 

(A) Emissions of sulfur dioxide from each small 
municipal waste combustor shall be reduced by 
at least 50 percent by weight or volume or to 
more than 80 parts per million by volume 
corrected to seven percent oxygen (dry basis), 
whichever is less stringent Compliance with 
this emission limit is based on a 24-hour daily 
geometric mean. 

(B) Emissions of sulfiir dioxide from each large 
municipal waste combustor shall be: 

(i) reduced by at least 75 percent by weight 
or volume, or to more than 3 1 parts per 
million by volume corrected to seven 
percent oxygen (dry basis), whichever is 
less stringent, by August 1, 2000. 
Compliance with this emission limit is 
based on a 24-hour daily geometric 
mean; and 

(ii) reduced by at least 75 percent by weight 
or volume, or to more than 29 parts per 
million by volume corrected to seven 
percent oxygen (dry basis), whichever is 
less stringent, by August 1, 2002. 
Compliance with this emission limit is 
based on a 24-hour daily geometric 
mean. 

(5) Nitrogen Oxide. 

(A) Emissions of nitrogen oxide from each large 
municipal waste combustor shall not exceed 
the emission limits in Table 1 of Paragraph (d) 
of 40 CFR 60.33b. Nitrogen oxide emissions 
averaging is allowed as specified in 40 CFR 
60.33b(d)(l)(i) through (d)(l)(v). Nitrogen 
oxide emissions control is not required for 
small municipal waste combustors. 

(B) In addition to the requirements of Part (A) of 
this Subparagraph, emissions of nitrogen oxide 
from fluidized bed combustors located at a 
large municipal waste combustor shall not 
exceed 180 parts per million by volume, 
corrected to seven percent oxygen, by August 






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1742 



APPROVED RULES 



1 , 2002. If nitrogen oxide emissions averaging 
is used as specified in 40 CFR 60.33b(d)(l)(i) 
through (d)(l )(V), emissions of nitrogen oxide 
from fluidized bed combustors located at a 
large municipal waste combustor shall not 
exceed 165 parts per million by volume, 
corrected to seven percent oxygen, by August 
1,2002. 

(6) Odorous Emissions. Any incinerator subject to this 
Rule shall comply with Rule .0522 of this Subchapter 
for the control of odorous emissions. 

(7) Hydrogen Chloride. 

(A) Emissions of hydrogen chloride fi^om each 
small municipal waste combustor shall be 
reduced by at least 50 percent by weight or 
volume or to no more than 250 parts per 
million by volume corrected to seven percent 
oxygen (dry basis), whichever is less stringent 
Compliance with this Part shall be determined 
by averaging emissions over a one-hour period. 

(B) Emissions of hydrogen chloride from each 
large municipal waste combustor shall be: 

(i) reduced by at least 95 percent by weight 
or volume, or to no more than 3 1 parts 
per million by volume, corrected to 
seven percent oxygen (dry basis), 
whichever is less stringent, by August 1 , 
2000. Compliance with this emission 
limit shall be determined by averaging 
emissions over a one-hour period; and 

(ii) reduced by at least 95 percent by weight 
or volume, or to no more than 29 parts 
per million by volume, corrected to 
seven percent oxygen (dry basis), 
whichever is less stringent, by August 1 , 
2002. Compliance with this emission 
limit shall be determined by averaging 
emissions over a one-hour period. 

(8) Mercury Emissions. Emissions ofmercury from each 
municipal waste combustor shall be reduced by at 
least 85 percent by weight or shall not exceed 0.08 
milligrams per dry standard cubic meter, corrected to 
seven percent oxygen, whichever is less stringent 
Compliance with this Subparagraph shall be 
determined by averaging emissions over a one-hour 
period. 

(9) Lead Emissions. 

(A) Emissions of lead from each small municipal 
waste combustor shall not exceed 1.6 
milligrams per dry standard cubic meter, 
corrected to seven percent oxygen. 

(B) Emissions of lead from each large municipal 
waste combustor shall not exceed 0.49 
milligrams per dry standard cubic meter, 
corrected to seven percent oxygen, by August 
1 , 2000 and shall not exceed 0.44 milligrams 
per dry standard cubic meter, corrected to 



seven percent oxygen, by August 1, 2002. 

( 1 0) Cadmium Emissions. 

(A) Emissions of cadmium from each small 
municipal waste combustor shall not exceed 
0.10 milligrams per dry standard cubic meter, 
corrected to seven percent oxygen. 

(B) Emissions of cadmium from each large 
municipal waste combustor shall not exceed 
0.040 milligrams per dry standard cubic meter, 
corrected to seven percent oxygen. 

(11) Dioxins and Furans. 

(A) Emissions of dioxins and fiirans from each 
small municipal waste combustor shall not 
exceed 125 nanograms per dry standard cubic 
meter (total mass) corrected to seven percent 
oxygen. 

(B) Emissions of dioxins and fiirans from each 
large municipal waste combustor shall not 
exceed: 

(i) 60 nanograms per dry standard cubic 
meter (total mass) corrected to seven 
percent oxygen for facilities that employ 
an electrostatic precipitator-based 
emission control system, or 
(ii) 30 nanograms per dry standard cubic 
meter (total mass) corrected to seven 
percent oxygen for facilities that do not 
employ an electrostatic precipitator- 
based emission control system, 

(12) Fugitive Ash. 

(A) On or after the date on which the initial 
performance test is completed, no owner or 
operator of a municipal waste combustor shall 
cause to be discharged to the atmosphere 
visible emissions of combustion ash from an 
ash conveying system (including conveyor 
transfer points) in excess of five percent of the 
observation period (i.e., nine minutes per block 
three-hour period), as determined by EPA 
Reference Method 22 observations as specified 
in 40 CFR 60.58b(k), except as provided in 
Parts (B) and (C) of this Subparagraph. 

(B) The emission limit specified in Part (A) of this 
Subparagraph covers visible emissions 
discharged to the atmosphere from buildings or 
enclosures, not the visible emissions 
discharged inside of the building or enclosures, 
of ash conveying systems. 

(C) The provisions specified in Part (A) of this 
Subparagraph do not apply during maintenance 
and repair of ash conveying systems. 

(13) Toxic Emissions. The owner or operator of a 
municipal waste combustor shall demonstrate 
compliance with Section . 1 1 00 of this Subchapter 
according to 15A NCAC 2Q .0700. 

( 1 4) Ambient Standards. 



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APPROVED RULES 



(A) In addition to the ambient air quality standards 
in Section .0400 of this Subchapter, the 
following ambient air quality standards, which 
are an annual average, in milligrams per cubic 
meter at 77^ (25°C) and 29.92 inches (760 
mm) of mercury pressure, and which are 
increments above background concentrations, 
shall apply aggregately to all incinerators at a 
facility subject to this Rule: 

(i) arsenic and its compounds 

2.3x10' 
(ii) beryllium and its compounds 

4.1x10-' 
(iii) cadmium and its compounds 

5.5x10' 
(iv) chromium (VI) and its compounds 
8.3x10-' 

(B) When Subparagraph (1) of this Paragraph and 
Rule .0524, .11 10, or .1 1 1 1 of this Subchapter 
regulate the same pollutant, the more restrictive 
provision for each pollutant shall apply, 
notwithstanding provisions of Rule .0524, 
.1110, or .1111 of this Subchapter to the 
contrary. 

(C) The owner or operator of a facility with 
incinerators subject to this Rule shall 
demonstrate compliance with the ambient 
standards in Subparts (i) through (iv) of Part 
(A) of this Subparagraph by following the 
procedures set out in Rule .1106 of this 
Subchapter. Modeling demonstrations shall 
comply with the requirements of Rule .0533 of 
this Subchapter. 

(D) The emission rates computed or used under 
Part (C) of this Subparagraph that demonstrate 
compliance with the ambient standards under 
Part (A) of this Subparagraph shall be specified 
as a permit condition for the facility with 
incinerators as their allowable emission limits 
unless Rule .0524, .1110, or .1111 of this 
Subchapter requires more restrictive rates. 

(d) Operational Standards. 

( 1 ) The operational standards in this Rule do not apply to 
any incinerator subject to this Rule when applicable 
operational standards in Rule .0524, . 1 1 1 0, or . 1 1 1 1 of 
this Subchapter apply. 

(2) Each municipal waste combustor shall meet the 
following operational standards: 

(A) The concentration of carbon monoxide at the 
combustor outlet shall not exceed the 
concentration in Table 3 of 40 CFR 60.34b(a). 
The combustor technology named in this table 
is defined in 40 CFR 60.51b. 

(B) The load level shall not exceed 1 10 percent of 
the maximum demonstrated municipal waste 
combustor unit load, except as specified in 40 
CFR 60.53b(b)(l) and (b)(2). The maximum 



demonstrated municipal waste combustor unit 

load is defined in 40 CFR 60.51b and the 

averaging time is specified under 40 CFR 

60.58b(i). 

(C) The temperature at which the combustor 

operates, measured at the particulate matter 

control device inlet, shall not exceed 63° F 

above the maximum demonstrated particulate 

matter control device temperature, except as 

specified in 40 CFR 60.53b(c)(l) and (c)(2). 

The maximum demonstrated particulate matter 

control device temperature is defined in 40 

CFR 60.5 lb and the averaging time is specified 

under 40 CFR 60.58b(i). 

(3) Except during start-up where the procedure has been 

approved according to Rule .0535(g) of this 

Subchapter, waste material shall not be loaded into any 

incinerator subject to this Rule when the temperature 

is below the minimum required temperature. Start-up 

procedures may be determined on a case-by-case basis 

according to Rule .0535(g) of this Subchapter. 

Incinerators subject to this Rule shall have automatic 

auxiliary burners that are capable of maintaining the 

required minimum temperature in the secondary 

chamber excluding the heat content of the wastes. 

(e) Test Methods and Procedures. 

(1) The test methods and procedures described in Rule 
.0501 of this Subchapter and in 40 CFR Part 60 
Appendix A and 40 CFR Part 61 Appendix B shall be 
used to determine compliance with emission rates. 
Method 29 of 40 CFR Part 60 shall be used to 
determine emission rates for metals. However, 
Method 29 shall be used to sample for chromium (VI), 
and SW 846 Method 0060 shall be used for the 
analysis. 

(2) The Director may require the owner or operator of any 
incinerator subject to this Rule to test his incinerator to 
demonstrate compliance with the emission standards in 
Paragraph (c) of this Rule. 

(3) The owner or operator of a municipal waste combustor 
shall do performance testing according to 40 CFR 
60.58b. For large municipal waste combustors that 
achieve a dioxin and fiiran emission level less than or 
equal to 1 5 nanograms per dry standard cubic meter 
total mass, corrected to seven percent oxygen, the 
performance testing shall be performed according to 
the testing schedule specified in 40 CFR 
60.58b(g)(5)(iii). For small municipal waste 
combustors that achieve a dioxin and fiiran emission 
level less than or equal to 30.0 nanograms per dry 
standard cubic meter total mass, corrected to seven 
percent oxygen, the performance testing shall be 
performed according to the testing schedule specified 
in 40 CFR 60.58b(g)(5)(iii). 

(f) Monitoring, Recordkeeping, and Reporting. 

( 1 ) The owner or operator of an incinerator subject to the 
requirements of this Rule shall comply with the 



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1744 



APPROVED RULES 



monitoring, recordkeeping, and reporting 
requirements in Section .0600 of this Subchapter. 

(2) The owner or operator of an incinerator subj ect to the 
requirements of this Rule shall maintain and operate a 
continuous temperature monitoring and recording 
device for the primary chamber and, where there is a 
secondary chamber, for the secondary chamber. The 
owner or operator of an incinerator that has installed 
air pollution abatement equipment to reduce emissions 
of hydrogen chloride shall install, operate, and 
maintain continuous monitoring equipment to measure 
pH for wet scrubber systems and rate of alkaline 
injection for dry scrubber systems. The Director shall 
require the owner or operator of an incinerator with a 
permitted charge rate of 750 pounds per hour or more 
to install, operate, and maintain continuous monitors 
for oxygen or for carbon monoxide or both as 
necessary to determine proper operation of the 
incinerator. The Director may require the owner or 
operator of an incinerator with a permitted charge rate 
of less than 750 pounds per hour to install, operate, 
and maintain monitors for oxygen or for carbon 
monoxide or both as necessary to determine proper 
operation of the incinerator. 

(3) In addition to the requirements of Subparagraphs (1) 
and (2) of this Paragraph, the owner or operator of a 
municipal waste combustor shall: 

(A) install, operate, and maintain, for each 
municipal waste combustor, continuous 
emission monitors to determine the foUowdng: 

(i) opacity according to 40 CFR60.58b(c). 
(ii) sulfur dioxide according to 40 CFR 

60.58b(e). 
(iii) nitrogen dioxide according to 40 CFR 

60.5 8b(h). (This requirement applies 

only to large municipal waste 

combustors). 

(B) maintain records of the information listed in 40 
CFR 60.59b(d)(l) through (d)(15) for a period 
of at least five years. 

(C) following the initial compliance tests as 
required under Paragraph (e) of this Rule, 
submit the information specified in 40 CFR 
60.59b(f)(l) through (f)(6), in the initial 
performance test report. 

(D) following the first year of municipal combustor 
operation, submit an annual report including 
the information specified in 40 CFR 
60.59b(g)(l) through (g)(4), as applicable, no 
later than February 1 ofeach year following the 
calendar year in which the data were collected. 
Once the unit is subject to permitting 
requirements under 15A NCAC 2Q .0500, 
Title V Procedures, the owner or operator of an 
affected facility shall submit these reports 
semiannually. 

(E) submit a semiannual report that includes 



information specified in 40 CFR 60.59b(h)(l) 
through (h)(5), for any recorded pollutant or 
parameter that does not comply wdth the 
pollutant or parameter limit specified in this 
Section, according to the schedule specified in 
40 CFR 60.59b(h)(6). 
(g) Excess Emissions and Start-up and Shut-down. All 
incinerators subject to this Rule shall comply with Rule .0535, 
Excess Emissions Reporting and Malfimctions, of this 
Subchapter, 
(h) Operator Training and Certification. 

(1) By January 1, 2000, or six months after the date of 
start-up of a small municipal waste combustor, 
whichever is later, and by July 1, 1999 or six months 
after the date of start-up of a large municipal waste 
combustor, whichever is later: 

(A) Each facility operator and shift supervisor of a 
municipal waste combustor shall obtain and 
maintain a current provisional operator 
certification fi-om the American Society of 
Mechanical Engineers (ASME QRO-1-1994). 

(B) Each facility operator and shift supervisor of a 
municipal waste combustor shall have 
completed full certification or shaU have 
scheduled a full certification exam with the 
American Society of Mechanical Engineers 
(ASME QRO-1-1994). 

(C) The owner or operator of a municipal waste 
combustor plant shall not allow the facility to 
be operated at any time unless one of the 
following persons is on duty at the affected 
facility: 

(i) a fully certified chief facility operator, 
(ii) a provisionally certified chief facility 
operator who is scheduled to take the 
full certification exam according to the 
schedule specified in Part (B) of this 
Subparagraph, 
(iii) a fully certified shift supervisor, or 
(iv) a provisionally certified shift supervisor 
who is scheduled to take the full 
certification exam according to the 
schedule specified in Part (B) of this 
Subparagraph. 
If one of the persons listed in this Part leaves 
the affected facility during their operating shift, 
a provisionally certified control room operator 
who is onsite at the affected facility may fulfill 
the requirements in this Part. 

(2) The owner or operator of a municipal waste combustor 
shall develop and update on a yearly basis a site- 
specific operating manual that shall at the minimum 
address the elements of municipal waste combustor 
unit operation specified in 40 CFR 60.54b(e)(l) 
through (e)( 11). 

(3) By July 1 , 1 999, or six months after the date of start- 



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up of a municipal waste combustor, whichever is later, 
the owner or operator of the municipal waste 
combustor plant shall comply with the following 
requirements: 

(A) All chief facility operators, shift supervisors, 
and control room operators shall complete the 
EPA municipal waste combustor training 
course. 

(i) The requirements specified in Part (A) 
of this Subparagraph shall not apply to 
chief facility operators, shift 
supervisors and control room operators 
who have obtained full certification 
from the American Society of 
Mechanical Engineers on or before July 
1, 1998. 

(ii) As provided under 40 CFR 
60.39b(c)(4)(iii)(B), the owner or 
operator may request that the 
Administrator waive the requirement 
specified in Part (A) of this 
Subparagraph for the chief facility 
operators, shift supervisors, and control 
room operators who have obtained 
provisional certification from the 
American Society of Mechanical 
Engineers on or before July 1 , 1 998. 

(B) The owner or operator of a m.unicipal waste 
combustor shall establish a training program to 
review the operating manual, according to the 
schedule specified in Subparts (i) and (ii) of 
this Part, with each person who has 
responsibilities affecting the operation of an 
affected facility, including the chief facility 
operators, shift supervisors, control room 
operators, ash handlers, maintenance 
personnel, and crane-load handlers. 

(i) Each person specified in Part (B) of this 
Subparagraph shall undergo initial 
training no later than the date specified 
in Items (I) through (III) of this Subpart, 
whichever is later. 
(I) The date six months after the 
date of start-up of the affected 
facility; 
(II) July 1,1999; or 
(III) The date prior to the day when 
the person assumes 
responsibilities affecting 
municipal waste combustor unit 
operation, 
(ii) Annually, following the initial training 
required by Subpart (i) of this Part. 

(C) The operating manual required by 
Subparagraph (2) of this Paragraph shall be 
kept in a readily accessible location for all 
persons required to undergo training under Part 



(B) of this Subparagraph. The operating 
manual and records of training shall be 
available for inspection by the personnel of the 
Division on request. 
(4) The referenced ASME exam in this Paragraph is 
hereby incorporated by reference and includes 
subsequent amendments and editions. Copies of the 
referenced ASME exam may be obtained from the 
American Society of Mechanical Engineers (ASME), 
22 Law Drive, Fairfield, NJ 07007, at a cost of forty 
nine dollars ($49.00). 
(i) Compliance Schedules. 

(1) The owner or operator of a large municipal waste 
combustor shall choose one of the following three 
comphance schedule options: 

(A) comply with all the requirements or close 
before August 1,2000; 

(B) comply with all the requirements after one year 
but before three years following the date of 
issuance of a revised construction and 
operation permit, if permit modification is 
required, or after August 1, 2000, but before 
August 1 , 2002, if a permit modification is not 
required. If this option is chosen, then the 
owner or operator of the facility shall submit to 
the Director measurable and enforceable 
incremental steps of progress towards 
compliance which include: 

(i) a date by which contracts for the 
emission control system or equipment 
shall be awarded or orders issued for 
purchase of component parts; 
(ii) a date by which on site construction, 
installation, or modification of emission 
control equipment shall begin; 

(iii) a date by which on site construction, 
installation, or modification of emission 
control equipment shall be completed; 

(iv) a date for initial start-up of emissions 

control equipment; 
(v) a date for initial performance test(s) of 
emission control equipment; and 

(vi) a date by which the facility shall be in 
compliance with this Section, which 
shall be no later than three years fi-om 
the issuance of the permit; or 

(C) close between August 1, 2000, and August 1, 
2002. If this option is chosen then the owner 
or operator of the facility shall submit to the 
Director a closure agreement which includes 
the date of the plant closure. 

(2) The owner or operator of a small municipal waste 
combustor shall comply with all requirements, or 
close, within three years following the date of 
issuance of a revised construction and operation 
permit, if a permit modification is required, or by 
August 1, 2002, if a permit modification is not 



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1746 



APPROVED RULES 



required 

(3) All large municipal waste combustors for which 
construction, modification, or reconstruction 
commenced after June 26, 1987, but before 
September 19, 1994, shall comply with the emission 
limit for mercury specified in Subparagraph (c)(8) of 
this Rule and the emission limit for dioxin and fUran 
specified in Part (c)(l 1)(B) of this Rule within one 
year following issuance of a revised construction and 
operation permit, if a permit modification is required, 
or by August 1 , 2000, whichever is later. 

(4) The owner or operator shall certify to the Director 
within five days after the deadline, for each increment 
of progress, whether the required increment of 
progress has been met 

Authority G.S. 143-2 15.3(a)(1): 143-215. 107(a)(3).(4),(5): 40 
CFR 60.35b: 40 CFR 6034e; 
Amended Eff. July 1, 2000. 

.1206 HOSPITAL, MEDICAL, AND INFECTIOUS 
WASTE INCINERATORS 

(a) Applicability. This Rule apphes to any hospital, medical, 
and infectious waste incinerator (HMIWl), except: 

(1) any HMfWI required to have a permit under Section 
3005 of the Solid Waste Disposal Act; 

(2) any pyrolysis unit; 

(3) any cement kiln firing hospital waste or medical and 
infectious waste; 

(4) any physical or operational change made to an 
existing HMIWI solely for the purpose of complying 
with the emission standards for HMIWIs in this Rule. 
These physical or operational changes are not 
considered a modification and do not result in an 
existing HMFWI becoming subject to the provisions of 
40 CFR Part 60, Subpart Ec; 

(5) any HMIWI during periods when only pathological 
waste, low-level radioactive waste, or 
chemotherapeutic waste is burned, provided that the 
owner or operator of the HMIWI: 

(A) notifies the Director of an exemption claim; 
and 

(B) keeps records on a calendar quarter basis of the 
periods of time when only pathological waste, 
low-level radioactive waste, or 
chemotherapeutic waste is burned; or 

(6) any co-fired HMIWI, if the owner or operator of the 
co-fired HMIWI: 

(A) notifies the Director of an exemption claim; 

(B) provides an estimate of the relative weight of 
hospital, medical and infectious waste, and 
other fiiels or wastes to be combusted; and 

(C) keeps records on a calendar quarter basis of the 
weight of hospital, medical and infectious 
waste combusted, and the weight of all other 
fijels and wastes combusted at the co-fired 



HMFWI. 

(b) Definitions. For the purpose of this Rule, the definitions 
contained in 40 CFR 60.51c shall apply in addition to the 
definitions in Rule .1202 of this Section. 

(c) Emission Standards. 

(1) The emission standards in this Rule apply to all 
incinerators subject to this Rule except where Rule 
.0524, .1110, or .1111 of this Subchapter applies. 
However, in any event, Subparagraphs (13) or (14) of 
this Paragraph shall control. 

(2) Particulate Matter. 

(A) Emissions of particulate matter fi'om a HMIWI 
shall not exceed: 





Allowable Emission Rate 


Incinerator Size 


(mg/dscm) 




[corrected to seven percent 




oxygen] 


Small 


115 


Medium 


69 


Large 


34 



(B) Emissions of particulate matter from any smaO 
remote HMFWI shall not exceed 197 
milligrams per dry standard cubic meter, 
corrected to seven percent oxygen. 

(3) Visible Emissions. On and after the date on which the 
initial performance test is completed, the owner or 
operator of any HMIWF shall not cause to be 
discharged into the atmosphere from the stack of the 
HMFWI any gases that exhibit greater than 10 percent 
opacity (6-minute block average). 

(4) Sulfiir Dioxide. Emissions ofsulfiir dioxide from any 
HMIWI shall not exceed 55 parts per million 
corrected to seven percent oxygen (dry basis). 

(5) Nitrogen Oxide. Emissions of nitrogen oxides from 
any HMIWI shall not exceed 250 parts per million by 
volume corrected to seven percent oxygen (dry basis). 

(6) Carbon Monoxide. Emissions of carbon monoxide 
from any HMIWI shall not exceed 40 parts per 
million by volume, corrected to seven percent oxygen 
(dry basis). 

(7) Odorous Emissions. Any incinerator subject to this 
Rule shall comply with Rule .0522 of this Subchapter 
for the control of odorous emissions. 

(8) Hydrogen Chloride. 

(A) Emissions of hydrogen chloride from any 
small, medium, or large HMFWI shall be 
reduced by at least 93 percent by weight or 
volume or to no more than 100 parts per 
million by volume corrected to seven percent 
oxygen (diy basis), whichever is less stringent 



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APPROVED RULES 



Compliance with this Part shall be determined 
by averaging emissions over a one-hour period. 
(B) Emissions of hydrogen chloride from any small 
remote HMIWI shall not exceed 3 1 00 parts per 
million by volume corrected to seven percent 
oxygen (dry basis). Compliance with this Part 
shall be determined by averaging emissions 
over a one-hour period. 
(9) Mercury Emissions. 

(A) Emissions ofmercury from any small, medium, 
or large HMIWI shall be reduced by at least 85 
percent by weight or shall not exceed 0.55 
milligrams per dry standard cubic meter, 
corrected to seven percent oxygen, whichever 
is less stringent. Compliance with this Part 
shall be determined by averaging emissions 
over a one-hour period. 

(B) Emissions of mercury from any small remote 
HMIWI shall not exceed 7.5 milligrams per dry 
standard cubic meter, corrected to seven 
percent oxygen. Compliance with this Part 
shall be determined by averaging emissions 
over a one-hour period. 

(10) Lead Emissions. 

(A) Emissions of lead from any small, medium, or 
large HMIWI shall be reduced by at least 70 
percent by weight or shall not exceed 1.2 
milligrams per dry standard cubic meter, 
corrected to seven percent oxygen, whichever 
is less stringent. 

(B) Emissions of lead from any small remote 
HMTWI shall not exceed 1 milligrams per dry 
standard cubic meter, corrected to seven 
percent oxygen. 

(11) Cadmium Emissions. 

(A) Emissions of cadmium from any small, 
medium, or large HMIWI shall be reduced by 
at least 65 percent by weight or shaU not 
exceed 0. 1 6 milligrams per dry standard cubic 
meter, corrected to seven percent oxygen, 
whichever is less stringent. 

(B) Emissions of cadmium from any small remote 
HMfWI shall not exceed 4 milligrams per dry 
standard cubic meter, corrected to seven 
percent oxygen. 

( 1 2) Dioxins and Furans. 

(A) Emissions of dioxins and fiirans from any 
small, medium, or large HMIWI shall not 
exceed 1 25 nanograms per dry standard cubic 
meter total dioxins and fiirans, corrected to 
seven percent oxygen or 2.3 nanograms per dry 
standard cubic meter (total equivalency), 
corrected to seven percent oxygen. 

(B) Emissions of dioxins and furans from any 
small remote HMIWI shall not exceed 800 
nanograms per dry standard cubic meter total 
dioxins and fiirans, corrected to seven percent 



oxygen or 1 5 nanograms per dry standard cubic 
meter (total equivalency), corrected to seven 
percent oxygen. 

(13) Toxic Emissions. The owner or operator of any 
incinerator subject to this Rule shall demonstrate 
compliance with Section .1100 of this Subchapter 
according to 1 5 A NCAC 2Q .0700. 

(14) Ambient Standards. 

(A) In addition to the ambient air quality standards 
in Section .0400 of this Subchapter, the 
following ambient air quality standards, which 
are an annual average, in milligrams per cubic 
meter at 77°F (25°C) and 29.92 inches (760 
mm) of mercury pressure, and which are 
increments above background concentrations, 
shall apply aggregately to all incinerators at a 
facility subject to this Rule: 

(i) arsenic and its compounds 

2.3x10' 
(ii) beryllium and its compounds 

4.1x10-' 
(iii) cadmium and its compounds 

5.5x10" 
(iv) chromium (VI) and its compounds 

8.3x10-* 

(B) When Subparagraph (1) of this Paragraph and 
Rule .0524, .1 1 10, or .1 1 1 1 of this Subchapter 
regulate the same pollutant, the more restrictive 
provision for each pollutant shall apply, 
notwithstanding provisions of Rule .0524, 
.1110, or .1111 of this Subchapter to the 
contrary. 

(C) The owner or operator of a facility with 
incinerators subject to this Rule shall 
demonstrate compliance with the ambient 
standards in Subparts (i) through (iv) of Part 
(A) of this Subparagraph by following the 
procedures set out in Rule .1106 of this 
Subchapter. Modeling demonstrations shall 
comply with the requirements of Rule .0533 of 
this Subchapter. 

(D) The emission rates computed or used under 
Part (C) of this Subparagraph that demonstrate 
compliance with the ambient standards under 
Part (A) of this Subparagraph shall be specified 
as a permit condition for the facility with 
incinerators subject to this Rule as their 
allowable emission limits unless Rule .0524, 
.1110, or .1111 of this Subchapter requires 
more restrictive rates. 

(d) Operational Standards. 

(1) The operational standards in this Rule do not apply to 
any incinerator subject to this Rule when applicable 
operational standards in Rule .0524, . 11 1 0, or . 1 1 1 1 of 
this Subchapter apply. 

(2) Each small remote HMIWI shall have an initial 
equipment inspection by July 1 , 2000, and an annual 



14:19 



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1748 



APPROVED RULES 



inspection each year thereafter. 

(A) At a minimum, the inspection shall include all 
the elements listed in 40 CFR 60.36e(a)(l)(i) 
through (xvii). 

(B) Any necessary repairs found during the 
inspection shall be completed within 10 
operating days of the inspection unless the 
owner or operator submits a written request to 
the Director for an extension of the 10 
operating day period. The Director shall grant 
the extension if: 

(i) the owner or operator of the small 
remote HMFWl demonstrates that 
achieving compliance by the time 
allowed under this Part is not feasible, 
and 

(ii) the Director does not extend the time 
allowed for compliance by more than 30 
days following the receipt of the written 
request. 

(3) The owner or operator of any HMIWI, except small 
remote HMIWI, subject to this Rule shall comply with 
the compliance and performance testing requirements 
of 40 CFR 60.56c, excluding the fugitive emissions 
testing requirements under 40 CFR 60.56c(b)( 1 2) and 
(c)(3). 

(4) The owner or operator of any small remote HMIWI 
shall comply with the following compliance and 
performance testing requirements: 

(A) conduct the performance testing requirements 
in 40 CFR 60.56c(a), (b)(1) through (b)(9), 
(b)(l l)(mercury only), and (c)(1). The 2,000 
pound per week limitation does not apply 
during performance tests; 

(B) establish maximum charge rate and minimum 
secondary chamber temperature as site-specific 
operating parameters during the initial 
performance test to determine compliance with 
applicable emission limits; and 

(C) following the date on which the initial 
performance test is completed, ensure that the 
HMIWI does not operate above the maximum 
charge rate or below the minimum secondary 
chamber temperature measured as three hour 
rolling averages, calculated each hour as the 
average of all previous three operating hours, at 
all times except during periods of start-up, shut- 
down and malfiinction. Operating parameter 
limits do not apply during performance tests. 
Operation above the maximum charge rate or 
below the minimum secondary chamber 
temperature shall constitute a violation of the 
established operating parameters. 

(5) Except as provided in Subparagraph (3) of this 
Paragraph, operation of the HMIWI above the 
maximum charge rate and below the minimum 
secondary temperature, each measured on a three hour 



rolling average, simultaneously shall constitute a 
violation of the particulate matter, carbon monoxide, 
and dioxin and fiiran emission limits. 
(6) The owner or operator of a HMFWI may conduct a 
repeat performance test within 30 days of violation of 
applicable operating parameters to demonstrate that 
the HMIWI is not in violation of the appUcable 
emission limits. Repeat performance tests conducted 
pursuant to this Subparagraph shall be conducted 
using the identical operating parameters that indicated 
a violation under Subparagraph (4) of this Paragraph. 

(e) Test Methods and Procedures. 

(1) The test methods and procedures described in Rule 
.0501 of this Subchapter and in 40 CFR Part 60 
Appendix A and 40 CFR Part 6 1 Appendix B shall be 
used to determine compliance with emission rates. 
Method 29 of 40 CFR Part 60 shall be used to 
determine emission rates for metals. However, 
Method 29 shall be used to sample for chromium (VI), 
and SW 846 Method 0060 shall be used for the 
analysis. 

(2) The Director may require the owner or operator to test 
his incinerator to demonstrate compliance with the 
emission standards listed in Paragraph (c) of this Rule. 

(f) Monitoring, Recordkeeping, and Reporting. 

( 1 ) The owner or operator of an incinerator subject to the 
requirements of this Rule shall comply with the 
monitoring, recordkeeping, and reporting 
requirements in Section .0600 of this Subchapter. 

(2) The owner or operator of an incinerator subject to the 
requirements of this Rule shall maintain and operate a 
continuous temperature monitoring and recording 
device for the primary chamber and, where there is a 
secondary chamber, for the secondary chamber. The 
owner or operator of an incinerator that has installed 
air pollution abatement equipment to reduce emissions 
of hydrogen chloride shall install, operate, and 
maintain continuous monitoring equipment to measure 
pH for wet scrubber systems and rate of alkaline 
injection for dry scrubber systems. The Director shall 
require the owner or operator of an incinerator with a 
permitted charge rate of 750 pounds per hour or more 
to install, operate, and maintain continuous monitors 
for oxygen or for carbon monoxide or both as 
necessary to determine proper operation of the 
incinerator. The Director may require the owner or 
operator of an incinerator with a permitted charge rate 
of less than 750 pounds per hour to install, operate, 
and maintain monitors for oxygen or for carbon 
monoxide or both as necessary to determine proper 
operation of the incinerator. 

(3) In addition to the requirements of Subparagraphs (1) 
and (2) of this Paragraph, the owner or operator of a 
HMIWI shall comply with the reporting and 
recordkeeping requirements listed in 40 CFR 
60.58c(b), (c), (d), (e), and (0, excluding 40 CFR 
60.58cfb)(2)(ii) and (b)(7). 



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14:19 



APPROVED RULES 



(4) In addition to the requirements of Subparagraphs (1 ), 
(2) and (3) of this Paragraph, the owner or operator of 
a small remote HMIWl shall: 

(A) maintain records of the annual equipment 
inspections, any required maintenance, and any 
repairs not completed within 10 days of an 
inspection; 

(B) submit an annual report containing information 
recorded in Part (A) of this Subparagraph to 
the Director no later than 60 days following the 
year in which data were collected. Subsequent 
reports shall be sent no later than 1 2 calendar 
months following the previous report. The 
report shall be signed by the HMFWI manager; 
and 

(C) submit the reports required by Parts (A) and 
(B) of this Subparagraph to the Director 
semiannually once the HMFWI is subject to the 
permitting procedures of 15A NCAC 2Q 
.0500, Tide V Procedures. 

(5) Waste Management Guidelines. The owner or 
operator of a HMIWl shall comply with the 
requirements of 40 CFR 60.55c for the preparation 
and submittal of a waste management plan. 

(6) Except as provided in Subparagraph (7) of this 
Paragraph, the owner or operator of any HMFWI shall 
comply with the monitoring requirements in 40 CFR 
60.57c. 

(7) The owner or operator of any small remote HMFWI 
shall: 

(A) install, calibrate, maintain, and operate a device 
for measuring and recording the temperature of 
the secondary chamber on a continuous basis, 
the output of which shall be recorded, at a 
minimum, once every minute throughout 
operation. 

(B) install, calibrate, maintain, and operate a device 
which automatically measures and records the 
date, time, and weight of each charge fed into 
the HMFWI. 

(C) obtain monitoring data at all times dirring 
HMFWI operation except during periods of 
monitoring equipment malfiinction, calibration, 
or repair. At a minimum, valid monitoring data 
shall be obtained for 75 percent of the 
operating hours per day and for 90 percent of 
the operating hours per calendar quarter that 
the HMIWl is combusting hospital, medical, 
and infectious waste. 

(g) Excess Emissions and Start-up and Shut-down. All 

incinerators subject to this Rule shall comply wdth Rule .0535, 

Excess Emissions Reporting and Malfimctions, of this 

Subchapter. 

(h) Operator Training and Certification. 

( 1 ) The owner or operator of a HMIWl shall not allow the 

HMIWl to operate at any time unless a fully trained 

and qualified HMIWI operator is accessible, either at 



the facility or available within one hour. The trained 
and qualified HMIWI operator may operate the 
HMIWl directly or be the direct supervisor of one or 
more HMIWI operators. 

(2) Operator training and qualification shall be obtained 
by completing the requirements of 40 CFR 60.53c(c) 
through (g). 

(3) The owner or operator of a HMIWI shall maintain, at 
the facility, all items required by 40 CFR 60.53c(h)(l) 
through (h)( 10). 

(4) The owner or operator of a HMFWI shall establish a 
program for reviewing the information required by 
Subparagraph (3) of this Paragraph annually with each 
HMIWI operator. The initial review of the 
information shall be conducted by January 1, 2000. 
Subsequent reviews of the information shall be 
conducted annually. 

(5) The information required by Subparagraph (3) of this 
Paragraph shall be kept in a readily accessible location 
for all HMIWl operators. This information, along 
with records of training shall be available for 
inspection by Division personnel upon request. 

(6) All HMFWI operators shall be in compliance with this 
Paragraph by July 1 , 2000. 

(i) Compliance Schedules. 

(1) Title V Application Date. Any FEMFWF subject to this 
rule shall have submitted an application for a permit 
under the procedures of 1 5 A NCAC 2Q .0500, Title V 
I^ocedures, by January 1 , 2000. 

(2) Final Compliance Date. Except for those FFMIWFs 
described in Subparagraphs (3) and (4) of this 
Paragraph, any HMIWl subject to this Rule shall be in 
compliance with this Rule or close on or before July 1 , 
2000. 

(3) Installation of Air Pollution Control Equipment. Any 
HMFWI planning to install the necessary air pollution 
control equipment to comply with the emission 
standards in Paragraph (c) of this Rule shall be in 
compliance with Paragraph (c) of this Rule by 
September 1 5, 2002. If this option is chosen, then the 
owner or operator of the HMIWl shall submit to the 
Director measurable and enforceable incremental steps 
of progress towards compliance which include: 

(A) the submission of a petition for site specific 
operating parameters under 40 CFR 63.56c(i); 

(B) the obtaining ofservicesofan architectural and 
engineering fum regarding the air pollution 
control device(s); 

(C) the obtaining of design drawings of the air 
pollution control device(s); 

(D) the ordering of air pollution control device(s); 

(E) the obtaining of the major components of the 
air pollution control device(s); 

(F) the initiation of site preparation for the 
installation of the air pollution control 
device(s); 

(G) the initiation of installation of the air pollution 



14:19 



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April 3, 2000 



1750 



APPROVED RULES 



control device(s); 
(H) the initial startup of the air pollution control 

device(s); and 
(I) the initial compliance test(s) of the air pollution 
control device(s). 
(4) Petition for Extension of Final CompUance Date. 

(A) The owner or operator of a HMIWl may 
petition the Director for an extension of the 
compliance deadline of Subparagraph (2) of 
this Paragraph provided that the following 
information is submitted by January 1 , 2000, to 
allow the Director adequate time to grant or 
deny the extension by July 1, 2000: 

(i) documentation of the analyses 
undertaken to support the need for an 
extension, including an explanation of 
why up to July 1 , 2002 is sufficient time 
to comply with this Rule while July 1 , 
2000, is not sufficient. The 
documentation shall also include an 
evaluation of the option to transport the 
waste offsite to a commercial medical 
waste treatment and disposal facility on 
a temporary or permanent bases; and 

(ii) documentation of the measurable and 
enforceable incremental steps of 
progress listed in Subparagraph (3) of 
this Paragraph to be taken towards 
compliance with the emission standards 
in Paragraph (c) of this Rule. 

(B) The Director may grant the extension if all the 
requirements in Part (A) of this Subparagraph 
are met. 

(C) If the extension is granted, the HMIWI shall be 
in compliance with this Section by 
July 1,2002. 

G.S. 143-21 5.3(a)(1); 143-2 15. 107(a)(5); 40 CFR 60.34e; 
Amended Eff. July 1, 2000. 

.1208 OTHER INCINERATORS 

(a) Applicability. 

( 1 ) This Rule applies to any incinerator not covered under 
Rule .1203 through .1207 of this Section. 

(2) If any incinerator subject to this Rule: 

(A) is used solely to cremate pets; or 

(B) if the emissions of aU toxic air pollutants from 
an incinerator subject to this Rule and 
associated waste handling and storage are less 
than the levels Usted in 1 5 A NCAC 2Q .07 II ; 

the incinerator shall be exempt from Subparagraphs 
(b)(6) through (b)(9) and Paragraph (c) of this Rule. 

(b) Emission Standards. 

(1) The emission standards in this Rule apply to any 
incinerator subject to this Rule except where Rule 
.0525, .1110, or . 1 1 1 1 of this Subchapter applies. 



However, in any event, Subparagraphs (8) or (9) of 
this Paragraph shall control. 

(2) Particulate Matter. Any incinerator subject to this 
Rule shall comply with one of the following emission 
standards for particulate matter: 

(A) For refiise charge rates between 100 and 2000 
pounds per hour, the allowable emissions rate 
for particulate matter from any stack or 
chimney of any incinerator subject to this Rule 
shall not exceed the level calculated with the 
equation E=0.002P calculated to two 
significant figures, where AE@ equals the 
allowable emission rate for particulate matter in 
pounds per hour and AP@ equals the refiase 
charge rate in pounds per hour. For refiise 
charge rates of to 100 pounds per hour the 
allowable emission rate in 0.2 pounds per hour. 
For refiise charge rates of 2000 pounds per 
hour or greater the allowable emission rate 
shall be 4.0 pounds per hour. Compliance with 
this Part shall be determined by averaging 
emissions over a block three-hour period. 

(B) Instead of meeting the standards in Part (A) of 
this Subparagraph, the owner or operator of 
any incinerator subject to this Rule may choose 
to Umit particulate emissions from the 
incinerator to 0.08 grains per dry standard 
cubic foot corrected to 12 percent carbon 
dioxide. In order to choose this option, the 
owner or operator of the incinerator shall 
demonstrate that the particulate ambient air 
quality standards wiU not be violated. To 
correct to 12 percent carbon dioxide, the 
measured concentration of particulate matter is 
multipUed by 12 and divided by the measured 
percent carbon dioxide. Compliance with this 
Part shall be determined by averaging 
emissions over a block three-hour period. 

(3) Visible Emissions. 

(A) Any incinerator subject to this Rule shall 
comply with Rule .0521 of this Subchapter for 
the control of visible emissions. 

(B) Air curtain incinerators shall comply wath Rule 
.1904 of this Subchapter for the control of 
visible emissions. 

(4) Sulftir Dioxide. Any incinerator subject to this Rule 
shall comply with Rule .0516 of this Subchapter for 
the control of sulfiir dioxide emissions. 

(5) Odorous Emissions. Any incinerator subject to this 
Rule shall comply wath Rule .0522 of this Subchapter 
for the control of odorous emissions. 

(6) Hydrogen Chloride. Any incinerator subject to this 
Rule shall control emissions of hydrogen chloride 
such that they do not exceed four pounds per hour 
unless they are reduced by at least 90 percent by 
weight or to no more than 50 parts per million by 
volume corrected to seven percent oxygen (dry basis). 



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April 3, 2000 



14:19 



APPROVED RULES 



Compliance with this Subparagraph shall be 
determined by averaging emissions over a one-hour 
period. 

(7) Mercury Emissions. Emissions of mercury and 
mercury compounds from the stack or chimney of any 
incinerator subject to this Rule shall not exceed 0.032 
pounds per hour. Compliance with this Subparagraph 
shall be determined by averaging emissions over a 
one-hour period. 

(8) Toxic Emissions. The owner or operator of any 
incinerator subject to this Rule shall demonstrate 
compliance with Section .1100 of this Subchapter 
according to 1 5 A NCAC 2Q .0700. 

(9) Ambient Standards. 

(A) In addition to the ambient air quality standards 
in Section .0400 of this Subchapter, the 
following ambient air quality standards, which 
are an annual average, in miUigrams per cubic 
meter at 77°F (25°C) and 29.92 inches (760 
mm) of mercury pressure, and which are 
increments above background concentrations, 
shall apply aggregately to all incinerators at a 
facility subject to this Rule: 

(i) arsenic and its compounds 

2.3x10-' 
(ii) beryllium and its compounds 

4.1x10-' 
(iii) cadmium and its compounds 

5.5x10-' 
(iv) chromium (VI) and its compounds 

8.3x10-' 

(B) When Subparagraph (1) of this Paragraph and 
Rule .0524, .1 1 10, or .1 1 1 1 of this Subchapter 
regulate the same pollutant, the more restrictive 
provision for each pollutant shall apply, 
notwithstanding provisions of Rule .0524, 
.1110, or .1111 of this Subchapter to the 
contrary. 

(C) The owner or operator of a facility with 
incinerators subject to this Rule shall 
demonstrate compliance wath the ambient 
standards in Subparts (i) through (iv) of Part 
(A) of this Subparagraph by following the 
procedures set out in Rule .1106 of this 
Subchapter. Modeling demonstrations shall 
comply with the requirements of Rule .0533 of 
this Subchapter. 

(D) The emission rates computed or used under 
Part (C) of this Subparagraph that demonstrate 
compliance with the ambient standards under 
Part (A) of this Subparagraph shall be specified 
as a permit condition for the facility with 
incinerators subject to this Rule as their 
allowable emission limits unless Rule .0524, 
.1110 or .1111 of this Subchapter requires 
more restrictive rates. 

(c) Operational Standards. 



(1) The operational standards in this Rule do not apply to 
any incinerator subject to this Rule when applicable 
operational standards in Rule .0524, . 1 1 1 0, or . II 1 1 of 
this Subchapter apply. 

(2) Crematory Incinerators. Gases generated by the 
combustion shall be subjected to a minimum 
temperature of 1 600°F for a period of not less than one 
second. 

(3) Other Incinerators. All incinerators not subject to any 
other rule in this Section shall meet the following 
requirement: Gases generated by the combustion shall 
be subjected to a minimum temperature of 1 800°F for 
a period ofnot less than one second. The temperature 
of 1 800°F shall be maintained at least 55 minutes out 
of each 60-minute period, but at no time shall the 
temperature go below 1600°F. 

(4) Except during start-up where the procedure has been 
approved according to Rule .0535(g) of this 
Subchapter, waste material shall not be loaded into any 
incinerator subject to this Rule when the temperature 
is below the minimum required temperature. Start-up 
procedures may be determined on a case-by-case basis 
according to Rule .0535(g) of this Subchapter. Any 
incinerator subject to this Rule shall have automatic 
auxiliary burners that are capable of maintaining the 
required minimum temperature in the secondary 
chamber excluding the heat content of the wastes. 

(d) Test Methods and Procedures. 

(1) The test methods and procedures described in Rule 
.0501 of this Subchapter and in 40 CFR Part 60 
Appendix A and 40 CFR Part 61 Appendix B shall be 
used to determine compliance with emission rates. 
Method 29 of 40 CFR Part 60 shall be used to 
determine emission rates for metals. However, 
Method 29 shall be used to sample for chromium (VT), 
and SW 846 Method 0060 shall be used for the 
analysis. 

(2) The Director may require the owner or operator to test 
his incinerator to demonstrate compliance with the 
emission standards listed in Paragraph (b) of this Rule. 

(e) Monitoring, Recordkeeping, and Reporting. 

(1) The owner or operator of an incinerator subject to the 
requirements of this Rule shall comply with the 
monitoring, recordkeeping, and reporting 
requirements in Section .0600 of this Subchapter. 

(2) The owner or operator of an incinerator, except an 
incinerator meeting the requirements of Parts 
.1201(c)(4)(A) through (D) of this Section, shall 
maintain and operate a continuous temperature 
monitoring and recording device for the primary 
chamber and, where there is a secondary chamber, for 
the secondary chamber. The Director may require a 
temperature monitoring device for incinerators 
meeting the requirements of Parts .1201(c)(4)(A) 
through (D) of this Section. The owner or operator of 
an incinerator that has installed air pollution 
abatement equipment to reduce emissions of hydrogen 



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April 3, 2000 



1752 



APPROVED RULES 



chloride shall install, operate, and maintain continuous 

monitoring equipment to measure pH for wet scrubber 

systems and rate of alkaline injection for dry scrubber 

systems. The Director shall require the owner or 

operator of an incinerator with a permitted charge rate 

of 750 pounds per hour or more to install, operate, and 

maintain continuous monitors for oxygen or for 

carbon monoxide or both as necessary to determine 

proper operation of the incinerator. The Director may 

require the owner or operator of an incinerator with a 

permitted charge rate of less than 750 pounds per hour 

to install, operate, and maintain monitors for oxygen or 

for carbon monoxide or both as necessary to determine 

proper operation of the incinerator. 

(f) Excess Emissions and Start-up and Shut-down. Any 

incinerator subject to this Rule shall comply with Rule .0535, 

Excess Emissions Reporting and Malfunctions, of this 

Subchapter. 

Authority G.S. 143-215.3(a)(l); 143-215. 107(a)(10). 
Amended Eff. July 1, 2000. 

SUBCHAPTER 2Q - AIR QUALITY PERMITS 
PROCEDURES 

SECTION .01 00 - GENERAL PROVISIONS 

.0102 ACTIVITIES EXEMPTED FROM PERMIT 
REQUIREMENTS 

(a) If a source is subject to any of the following rules, then the 
source is not exempted from permit requirements, and the 
exemptions in Paragraph (b) of this Rule do not apply: 

(1 ) new source performance standards under 1 5 A NCAC 
2D .0524 or 40 CFR Part 60, except: 

(A) 40 CFR Part 60, Subpart Dc, industrial, 
commercial, and institutional steam generating 
units located at a facility not required to be 
permitted under Section .0500 of this 
Subchapter; 

(B) 40 CFR Part 60, Subpart Kb, volatile organic 
liquid storage vessels located at a facility not 
required to be permitted under Section .0500 of 
this Subchapter; 

(C) 40 CFR Part 60, Subpart AAA, new residential 
wood heaters; or 

(D) 40 CFR Part 60, Subpart WWW, municipal 
solid waste landfills not required to be 
permitted under Section .0500 of this 
Subchapter; 

(2) national emission standards for hazardous air 
pollutants under 1 5 A NCAC 2D . 1 1 1 or 40 CFR Part 
61, except asbestos demolition and renovation 
activities; 

(3) prevention of significant deterioration under 15A 
NCAC 2D .0530; 

(4) new source review under 15A NCAC 2D .0531 or 



.0532; 

(5) sources of volatile organic compounds subject to the 
requirements of 1 5 A NCAC 2D .0900 that are located 
in Mecklenburg County in accordance with 15A 
NCAC 2D .0902; 

(6) sources required to apply maximum achievable control 
technology (MACT) for hazardous air pollutants under 
15A NCAC 2D .1 109, .1 1 1 1, .1 1 12, or 40 CFR Part 
63 that are required to have a permit under Section 
.0500 of diis Subchapter; or 

(7) sources at facilities subj ect to 1 5 A NCAC 2D . 1 1 00. 
(If a source does not emit a toxic air pollutant for 
which the facility at which it is located has been 
modeled, it shall be exempted from needing a permit 
if it qualifies for one of the exemptions in Paragraph 
(b) of this Rule). 

(b) The following activities do not need a permit or permit 
modification under this Subchapter; however, the Director may 
require the owner or operator of these activities to register them 
under 15A NCAC 2D .0200: 

(1) activities exempted because of category (These 
activities shall not be included on the permit 
application or in the permit.): 
(A) maintenance, upkeep, and replacement: 

(i) maintenance, structural changes, or 
repairs which do not change the 
capacity of such process, fuel-burning, 
refiise-buming, or confrol equipment, 
and do not involve any change in quality 
or nature or increase in quantity of 
emission of regulated air pollutants; 
(ii) housekeeping activities or building 
maintenance procedures, including 
painting buildings, resurfacing floors, 
roof repair, washing, portable vacuum 
cleaners, sweeping, use and associated 
storage of janitorial products, or 
insulation removal; 
(iii) use of office supplies, supplies to 
maintain copying equipment, or 
blueprint machines, 
(iv) use of fire fighting equipment; 
(v) paving parking lots; or 
(vi) replacement of existing equipment with 
equipment of the same size, type, and 
frmction that does not result in an 
increase to the actual or potential 
emission of regulated air pollutants and 
that does not affect the comphance 
status, and with replacement equipment 
that fits the description of the existing 
equipment in the permit, including the 
application, such that the replacement 
equipment can be operated under that 
permit without any changes in the 
permit; 



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(B) air conditioning or ventilation: comfort air 
conditioning or comfort ventilating systems 
which do not transport, remove, or exhaust 
regulated air pollutants to the atmosphere; 

(C) laboratory activities: 

(i) bench-scale, on-site equipment used 
exclusively for chemical or physical 
analysis for quality control purposes, 
staff instruction, water or wastewater 
analyses, or non-production 
environmental compliance assessments; 

(ii) bench-scale experimentation, chemical 
or physical analyses, training or 
instruction from not-for-profit, non- 
production educational laboratories; 

(iii) bench-scale experimentation, chemical 
or physical analyses, training or 
instruction from hospitals or health 
laboratories pursuant to the 
determination or diagnoses of illness; or 

(iv) research and development laboratory 
activities that are not required to be 
permitted under Section .0500 of this 
Subchapter provided the activity 
produces no commercial product or 
feedstock material; 

(D) storage tanks: 

(i) storage tanks used solely to store fuel 
oils, kerosene, diesel, crude oil, used 
motor oil, lubricants, cooling oils, 
natural gas or liquefied petroleum gas; 

(ii) storage tanks used to store gasoline for 
which there are no applicable 
requirements except Stage I controls 
under 15A NCAC 2D .0928; 

(iii) storage tanks used solely to store 
inorganic liquids; or 

(iv) storage tanks or vessels used for the 
temporary containment of materials 
resulting from an emergency response to 
an unanticipated release of hazardous 
materials; 

(E) combustion and heat transfer equipment: 

(i) space heaters burning distillate oil, 
kerosene, natural gas, or liquefied 
petroleum gas operating by direct heat 
transfer and used solely for comfort 
heat; 

(ii) residential wood stoves, heaters, or 
fireplaces; 

(iii) hot water heaters which are used for 
domestic purposes only and are not used 
to heat process water; 

(F) wastewater treatment processes: industrial 
wastewater treatment processes or municipal 
wastewater treatment processes for which there 
are no applicable requirements; 



(G) gasoline distribution: 

(i) gasoline service stations or gasoline 
dispensing facihties that are not required 
to be permitted under Section .0500 of 
this Subchapter; or 
(ii) gasoline dispensing equipment at 
facilities required to be permitted under 
Section .0500 of this Subchapter if the 
equipment is used solely to refiiel 
facility equipment; 
(H) dispensing equipment: equipment used solely 
to dispense diesel fuel, kerosene, lubricants or 
cooling oils; 
(f) solvent recycling: portable solvent distillation 
systems used for on-site solvent recycling if: 
(i) The portable solvent distillation system 
is not; 

(I) owned by the facility, and 
(n) operated at the facility for more 
than seven consecutive days; and 
(ii) The material recycled is: 

(F) recycled at the site of origin, 
(II) the original material is non- 
photochemically reactive in 
accordance with 1 5 A NCAC 2D 
.0518, Miscellaneous Volatile 
Organic Compound Emissions, 
and 
(HI) all make up material is non- 
photochemically reacfive in 
accordance with 1 5 A NCAC 2D 
.0518; 
(J) processes: 

(i) small electric motor bum-out ovens with 
secondary combustion chambers or 
afterburners; 
(ii) small electric motor bake-on ovens; 
(iii) bum-off ovens for paint-line hangers 

with afterburners; 
(iv) hosiery knitting machines and 
associated lint screens, hosiery dryers 
and associated lint screens, and hosiery 
dyeing processes where bleach or 
solvent dyes are not used; 
(v) blade wood planers planing only green 
wood; 
(K) solid waste landfills: municipal solid waste 
landfills not required to be permitted under 
Section .0500 of this Subchapter (This Part 
does not apply to flares and other sources of 
combustion at solid waste landfills.); 
(L) miscellaneous: 

(i) motor vehicles, aircraft, marine vessels, 
locomotives, tractors or other 
self-propelled vehicles with internal 
combustion engines; 



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(ii) non-self-propelled non-road engines, 
except generators, regulated by rules 
adopted under Title II of the federal 
Clean Air Act; 

(iii) equipment used for the preparation of 
food for direct on-site human 
consumption; 

(iv) a source whose emissions are regulated 
only under Section 1 1 2(r) or Title VI of 
the federal Clean Air Act that is not 
required to be permitted under Section 
.0500 of this Subchapter; 
(v) exit gases from in-line process 
analyzers; 

(vi) stacks or vents to prevent escape of 
sewer gases from domestic waste 
through plumbing traps; 

(vii) refrigeration equipment that is 
consistent with Section 60 1 through 6 1 8 
of Title VI (Stratospheric Ozone 
Protection) of the federal Clean Air Act, 
40 CFR Part 82, and any other 
regulations promulgated by EPA under 
Title VI for stratospheric ozone 
protection, except those units used as or 
in conjunction with air pollution control 
equipment; 
(viii) equipment not vented to the outdoor 
atmosphere with the exception of 
equipment that emits volatile organic 
compounds; 

(ix) equipment that does not emit any 
regulated air pollutants; 

(x) facilities subject only to a requirement 
under 40 CFR Part 63 that are not 
required to be permitted under Section 
.0500 of this Subchapter (This Subpart 
does not apply when a control device is 
used to meet a MACT or GACT 
emission standard.); 

(xi) sources for which there are no 
applicable requirements and that are at a 
facility not required to be permitted 
under Section .0500 of this Subchapter; 

(xii) sources for which there are no 
applicable requirements and that are at a 
facility required to be permitted under 
Section .0500 of this Subchapter 
following the procedures in Paragraph 
(c) of this Rule; or 
(xiii) animal operations not required to have 
control technology under 15A NCAC 
2D . 1 800 or not required to be permitted 
under Section .0500 of this Subchapter. 
(If an animal operation is required to 
have control technology, it shall be 
required to have a permit under this 



Subchapter.) 
(2) activities exempted because of size or production rate 
(These activities shall not be included in the permit If 
the facility is subject to the permitting procedures 
under Section .0500 of this Subchapter, these 
activities shall be listed on the permit appUcation; 
otherwise, these activities shall not be listed on the 
permit application.): 

(A) storage tanks: 

(i) above-ground storage tanks with a 
storage capacity of no more than 11 00 
gallons storing organic liquids with a 
true vapor pressure of no more than 
10.8 pounds per square inch absolute at 
TOT; or 

(ii) underground storage tanks with a 
storage capacity of no more than 2500 
gallons storing organic liquids with a 
true vapor pressure of no more than 
10.8 psi absolute at 70°F; 

(B) combustion and heat transfer equipment 
located at a facility not required to be permitted 
under Section .0500 of this Subchapter: 

(i) fiiel combustion equipment, except for 

intemal combustion engines, firing 

exclusively kerosene. No. 1 fuel oil. No. 

2 fiiel oil, equivalent unadulterated 

fiiels, or a mixture of these fiiels or one 

or more of these fiiels mixed of with 

natural gas or liquefied petroleum gas 

with a heat input of less than: 

(I) 10 million BTU per hour for 

which construction, 

modification, or reconstruction 

commenced after June 9, 1989; 

or 

(n) 30 million BTU per hour for 

which construction, 

modification, or reconstruction 

commenced before June 10, 

1989; 

(ii) fuel combustion equipment, except for 

intemal combustion engines, firing 

exclusively natural gas or liquefied 

petroleum gas or a mixture of these 

fiiels with a heat input rating less than 

65 million BTU per hour; 

(iii) space heaters burning waste oil if: 

(I) The heater bums only oil that the 
owner or operator generates or 
used oil from do-it-yourself oil 
changers who generate used oil 
as household wastes; 
(n) The heater is designed to have a 
maximum capacity of not more 
than 500,000 Btu per hour; and 



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(in) The combustion gases from the 

heater are vented to the ambient 

air; 
(iv) emergency use generators and other 
internal combustion engines not 
regulated by rules adopted under Title II 
of the federal Clean Air Act, except 
self-propelled vehicles, that have a rated 
capacity of no more than: 
(I) 310 kilowatts (electric) or 460 

horsepower for natural gas-fired 

engines, 
(II) 830 kilowatts (electric) or 11 50 

horsepower for liquefied 

petroleum gas-fired engines, 
(m) 270 kilowatts (electric) or 410 

horsepower for diesel-fired or 

kerosene-fired engines, or 
(TV) 21 kilowatts (electric) or 31 

horsepower for gasoline-fired 

engines; 
(v) portable generators and other portable 
equipment with internal combustion 
engines not regulated by rules adopted 
under Title II of the federal Clean Air 
Act, except self-propelled vehicles, that 
operate at the facility no more than a 
combined 350 hours for any 365-day 
period provided the generators or 
engines have a rated capacity of no 
more than 750 kilowatt (electric) or 
1100 horsepower each and provided 
records are maintained to verify the 
hours of operation; 
(vi) peak shaving generators that produce no 
more than 325,000 kilowatt-hours of 
electrical energy for any 12 -month 
period provided records are maintained 
to verify the energy production on a 
monthly basis and on a 1 2-month basis; 

(C) gasoline distribution; bulk gasoline plants with 
an average daily throughput of less than 4000 
gallons that is not required to be permitted 
under Section .0500 of this Subchapter; 

(D) processes: 

(i) printing, paint spray booths or other 
painting or coating operations without 
air pollution control devices (water 
wash and filters that are an integral part 
of the paint spray booth are not 
considered air pollution control devices) 
located at a facility whose facility-wide 
actual emissions of 
(I) Volatile organic compounds are 

less than five tons per year, and 
(IT) Photochemically reactive solvent 

emissions under 1 5 A NCAC 2D 



.0518 are less than 30 pounds 
per day; 
provided the facility is not required to 
be permitted under Section .0500 of this 
Subchapter; 
(ii) sawmills that saw no more than 
2,000,000 board feet per year provided 
only green wood is sawed; 
(iii) perchloroethylene dry cleaners that 
emits less than 13,000 pounds of 
perchloroethylene per year; 
(iv) electrostatic dry powder coating 
operations with filters or powder 
recovery systems including electrostatic 
dry powder coating operations equipped 
curing ovens with a heat input of less 
than 10,000,000 BTU per hour; 
(E) miscellaneous: 

(i) any source whose emissions would not 
violate any applicable emissions 
standard and whose potential emissions 
of particulate, sulfijr dioxide, nitrogen 
oxides, volatile organic compounds, and 
carbon monoxide before air pollution 
control devices, i.e., potential 
uncontrolled emissions, are each no 
more than five tons per year and whose 
potential emissions of hazardous air 
pollutants are below their lessor quantity 
cutoff except: 
(I) storage tanks, 
(II) fuel combustion equipment, 
excluding fuel combustion 
equipment at facilities required 
to have a permit under Section 
.0500 of this Subchapter, firing 
exclusively kerosene, No. 1 fuel 
oil, No. 2 fuel oil, equivalent 
unadulterated fuels, natural gas, 
liquefied petroleum gas, or a 
mixture of these fuels, 
(III) space heaters burning waste oil, 
(FV) generators, excluding emergency 
generators, or other non-self- 
propelled internal combustion 
engines, 
(V) bulk gasoline plants, 
(VI) printing, paint spray booths, or 
other painting or coating 
operations, 
(VII) sawmills, 

(VIII) perchloroethylene dry cleaners, 
or 
(EX) electrostatic dry powder coating 

operations, 
provided that the total potential 
emissions of particulate, sulfijr dioxide. 






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APPROVED RULES 



nitrogen oxides, volatile organic 
compounds, and carbon monoxide from 
the facility are each less than 40 tons per 
year and the total potential emissions of 
all hazardous air pollutants are below 
their lesser quantity cutoff emission 
rates or provided that the facility has an 
air quality permit; 
(ii) any facility whose actual emissions of 
particulate, sulfiir dioxide, nitrogen 
oxides, volatile organic compounds, or 
carbon monoxide before air pollution 
control devices, i.e., uncontrolled 
emissions, are each less than five tons 
per year, whose potential emissions of 
all hazardous air pollutants are below 
their lesser quantity cutoff emission 
rates, and which is not required to have 
a permit under Section .0500 of this 
Subchapter; 
(iii) any source that only emits hazardous air 
pollutants that are not also a particulate 
or a volatile organic compound and 
whose potential emissions of hazardous 
air pollutants are below their lesser 
quantity cutoff emission rates; or 
(iv) any incinerator covered under 
Subparagraph (c)(4) of 1 5 A NCAC 2D 
.1201. 
(F) case-by-case exemption; 

(i) for activities located at facilities not 
required to have a permit under Section 
.0500 of this Subchapter, activities that 
the applicant demonstrates to the 
satisfaction of the Director: 
(I) to be negligible in their air 

quality impacts, 
(IT) not to have any air pollution 

control device, and 
(m) not to violate any applicable 
emission control standard when 
operating at maximum design 
capacity or maximum operating 
rate, whichever is greater; or 
(ii) for activities located at facilities 
required to have a permit under Section 
.0500 of this Subchapter: activities that 
the applicant demonstrates to the 
satisfaction of the Director: 
(I) to be negligible in their air 

quality impacts, 
(II) not to have any air pollution 

control device, 
(III) not to violate any applicable 
emission control standard when 
operating at maximum design 
capacity or maximum operating 



rate, whichever is greater, 
(IV) the potential emissions of each 
criteria pollutant is less than five 
tons per year, and 
(V) the potential emissions of each 
hazardous air pollutant is less 
than 1000 pounds per year. 

(c) The Director shall exempt a source for which there are no 
applicable requirements at a facility required to have a permit 
under Section .0500 of this Subchapter from needing a permit if: 

(1 ) Tlie Director finds that emissions from the source are 
not likely to cause or contribute to any violation of an 
ambient air quality standard under Section 15A 
NCAC 2D .0400, or 40 CFR Part 50; and 

(2) The proposed permit exemption is noticed along with 
the initial draft permit or the next draft permit revision 
requiring public notice or draft permit renewal, 
whichever occurs first, and is subject to public 
comment procedures in Section .0500 of this 
Subchapter. 

If during the comment period EPA or any other person provides 
a satisfactory explanation to the Director of why the source 
should be permitted, the Director shall include the source in the 
facility's permit; otherwise, the Director shall not include the 
source in the facility's permit. 

(d) Because an activity is exempted from being required to 
have a permit does not mean that the activity is exempted from 
any applicable requirement or that the owner or operator of the 
source is exempted from demonstrating compliance with any 
applicable requirement. 

(e) Emissions from stationary source activities identified in 
Paragraph (b) of this Rule shall be included in determining 
compliance with the toxic air pollutant requirements under 1 5 A 
NCAC 2D .1100 or 2Q .0700 according to 15A NCAC 2Q 
.0702 (exemptions from air toxic permitting). 

(f) The owner or operator of a facility or source claiming an 
exemption under Paragraph (b) of this Rule shall provide the 
Director documentation upon request that the facility or source is 
qualified for that exemption. 

Authority G.S. 143-215. 3(a)(1); 143-215. 107(a)(4); 

143-215.108; 

Amended Eff. July 1. 2000. 

CHAPTER 3 - MARINE FISHERIES 

SUBCHAPTER 31 - GENERAL RULES 

SECTION .0100 - GENERAL RULES 

.01 06 SCIENTIFIC, EDUCATIONAL, OR OFFICIAL 
COLLECTING PERMIT 

(a) It is imlawfijl to take any marine or estuarine species for 
scientific purposes which is out of season or otherwise protected 
without first securing a scientific collecting permit from the 
Secretary. If the Secretary determines that the request is for a 



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APPROVED RULES 



valid scientific purpose and will not result in an adverse effect on 
fisheries management, the permit may be issued. Such permit 
will be subject to any restrictions concerning areas, times, and 
sampling methods as the Secretary deems appropriate. 

(b) It is unlawfiil for persons who have been issued an 
educational, scientific, or official collecting permit to fail to keep 
records according to the conditions of the permit This 
information shall be submitted to the Division of Marine 
Fisheries on an annual basis unless otherwise specified on the 
permit as is necessary or usefiil to the promotion of fisheries and 
the conversation of marine and estuarine resources. 

Authority G.S. 113-134: 113-169.3; 113-182; 113-261; 143B- 

289.52; 

Eff August 1.2000. 

SUBCHAPTER 30 - LICENSES, LEASES, AND 
FRANCfflSES 

SECTION .0100 - LICENSES 

.0101 PROCEDURE AND REQUIREMENTS TO 
OBTAIN LICENSES, ENDORSEMENTS AND 
COMMERCIAL FISHING VESSEL 
REGISTRATIONS 

(a) To obtain any Marine Fisheries licenses, endorsements, 
commercial fishing vessel registrations except Recreational 
Fishing Tournament Licenses to Sell Fish and Land or Sell 
Licenses, the following information is required for a proper 
application by the licensee, a responsible party or person holding 
a power of attorney: 

(1) Full name, physical address, mailing address, date of 
birth, and signature of the licensee on the application. 
If the licensee is not appearing before a license agent 
or a representative of the Division, the licensee's 
signature on the application must be notarized; 

(2) Current picture identification of licensee or 
responsible party; acceptable forms of picture 
identification are driver's license, state identification 
card, military identification card, resident alien card 
(green card) or passport or if purchased by mail, a 
copy thereof; 

(3) Certification that the applicant does not have four or 
more marine or estuarine resource violations during 
the previous three years; 

(4) Valid documentation papers or current motor boat 
registration or copy thereof when purchasing a 
commercial fishing vessel registration. If an 
application for transfer of documentation is pending, 
a copy of the pending application and a notarized bill 
of sale may be submitted; 

(5) Current articles of incorporation and a current list of 
corporate officers when purchasing a license or 
commercial fishing vessel registration in a corporate 
name. In the case of a corporation whose purpose 
includes operating a single commercial fishing vessel 
and whose assets include only one such fishing vessel. 



the name of the master of that vessel shall also be 
specified. It is unlawful to fail to notify the Morehead 
City Office of the Division of Marine Fisheries within 
five days of change of the master specified for that 
vessel; 

(6) If a partnership is established by a written partnership 
agreement, a current copy of such agreement shall be 
provided when purchasing a license, endorsement or 
commercial fishing vessel registration in a partnership 
name; 

(7) For North Carolina residents, a notarized certification 
fi-om the applicant that the applicant is a resident of the 
State ofNorth Carolina as defmed by G.S. 1 1 3- 1 30(4); 
and for nonresidents, certificarion of the state of 
residency; 

(8) In addition to the information required in G.S. 1 13- 
1 69.4, linear length of pier when purchasing an Ocean 
Fishing Pier License; 

(9) In addition to the information required in G.S. 1 13- 
171.1, current aircraft registration and list of 
operator(s) when purchasing a Spotter Plane License; 

(10) In addition, for fish dealers licenses, the physical address 
of the established location where business is conducted 
and, if different, the address where records are kept. 

(b) To obtain a License to Land Flounder from the Atlantic 
Ocean: 

(1) To qualify for a License to Land Flounder from the 
Atlantic Ocean, the apphcant shall: 

(A) have landed in North Carolina at least 1,000 
pounds of flounder from a single vessel each 
year from the Atlantic Ocean during any two of 
the 1992-93, 1993-94, 1994-95 license years 
for which the person had a vessel that was 
licensed to land in North Carolina; and 

(B) have been licensed under G.S. 11 3- 152 or G.S. 
113-153 during any two of the 1992-93, 1993- 
94, or 1994-95 license years; and 

(C) hold a valid Standard or Retired Standard 
Commercial Fishing License or valid Land or 
Sell License. 

(2) It is lawful for a person to hold Licenses to Land 
Flounder from the Atlantic Ocean equal to the number 
of vessels that he owns that individually met the 
eligibility requirements of Parts (b)(1)(A) and 
(b)(1)(B) of this Rule. 

(3) The License to Land Flounder from the Atlantic 
Ocean is only valid when used on the vessel specified 
at the time of license issuance. 

(4) At the time of issuance, the applicant for the License 
to Land Flounder from the Atlantic Ocean shall 
specify the name of the master of the vessel for each 
License to Land Flounder from the Atlantic Ocean 
issued. 

(5) Applicants for a License to Land Flounder from the 
Atlantic Ocean shall complete an application fonn 
provided by the Division of Marine Fisheries and 
submit it to the Morehead City Office of the Division 



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APPROVED RULES 



of Marine Fisheries for processing. 

(6) It is unlawfijl for the holder of the License to Land 
Flounder from the Atlantic Ocean to fail to notify the 
Morehead Office of the Division of Marine Fisheries 
within five days of change as to the master identified 
on the license. 

(7) Licenses to Land Flounder from the Atlantic Ocean 
are issued for the current Ucense year and expire on 
June 30. 

(c) To obtain a Recreational Fishing Toimiament License to 
Sell Fish , the following information is required for a 
proper application: 

(1) Full name, physical address, mailing address, date of 
birth, signature of the tournament organizer, name of 
tournament, and dates of tournament on the license 
application. If the licensee is not appearing before a 
representative of the Division, the hcensee's signature 
must be notarized on the application. 

(2) Current picture identification of tournament organizer; 
acceptable forms of picture identification are driver's 
license, state identification card, military identification 
card, or passport, or if purchased by mail, a copy 
thereof 

(3) The tournament organizer must apply with the 
Division of Marine Fisheries at least 30 days prior to 
the starting date of the tournament 

(d) To obtain a Land or Sell License, the following 
information is required for a proper application: 

(1) Full name, physical address, mailing address, date of 
birth, and signature of the responsible party or master 
for the vessel on the license application. If the 
licensee is not appearing before a representative of the 
Division, the licensee's signature on the application 
must be notarized on the application; 

(2) Pictured identification of responsible party or master; 
acceptable forms of picture identification are driver's 
license, state identification card, military identification 
card, or passport or if applying by mail, a copy thereof; 

(3) Valid documentation papers or current motor boat 
registration or copy thereof when purchasing a 
commercial fishing vessel registration. If an 
application for transfer of documentation is pending, 
a copy of the pending application and a notarized bill 
of sale may be submitted. 

Fees shall be based on the vessel's homeport as it appears on 
the U.S. Coast Guard documentation papers or the State in 
which the vessel is registered. 

(e) In addition to the certification required in Subparagraph 
(a)(7) of this Rule, proof of residency in North Carolina for: 

(1) Standard Commercial Fishing License or Retired 
Standard Commercial Fishing License shall be: 

(A) a notarized certification from the applicant that 
a North Carolina State Income Tax Return was 
filed for the previous calendar or tax year as a 
North Carolina resident; or 

(B) a notarized certification that the applicant was 



not required to file a North Carolina State 
Income Tax Return for the previous calendar or 
tax year; or 
(C) military identification, military dependent 
identification and permanent change of station 
orders or assignment orders substantiating 
individual's active duty assignment at a military 
facility in North Carolina. 
(2) All other types of licenses: 

(A) North Carolina voter registration card; or 

(B) Current Valid North Carolina Driver's License; 
or 

(C) Current Valid North Carolina Certificate of 
Domicile; or 

(D) Current Vahd North Carolina Identification 
Card issued by the North Carolina Division of 
Motor Vehicles; or 

(E) Military identification, military dependent 
identification and permanent change of station 
orders or assignment orders substantiating 
individual ' s active duty assignment at a military 
facility in North Carolina 

(f) Applications submitted without complete and required 
informarion will be deemed incomplete and shall not be 
considered fijrther until resubmitted with all required 
information. 

(g) It is unlawful for a license or registrarion holder to fail to 
notify the Division of Marine Fisheries within 30 days of a 
change of address. License holders are required to notify the 
Division of Marine Fisheries within 30 days of a change of 
address. 

(h) Licenses are available at Offices of the Division or by mail 
from the Morehead City Office, unless otherwise specified. In 
addition, Recreational Commercial Gear Licenses are available at 
Wildlife Service Agents who have been designated as agents of 
the Department 

Authority G.S. 113-134,113-168; 113-168.1; 113-168.2; 113- 
168.3; 113-168.4; 113-168.5; 113-168.6; 113-169; 113-169.2; 
113-169.3; 113-169.4; 113-169.5; 113-171.1; 143B-289.52; 
Eff. August 1, 2000. 

SECTION .0400 - STANDARD COMMERCIAL 
LICENSE ELIGIBILITY 

.0404 ELIGIBILITY CRITERIA 

In determining eligibility of an application for the Standard 
Commercial Fishing License Eligibility Pool, the Eligibility Board 
shall apply the following criteria: 

(1) Involvement in Commercial Fishing: 

(a) Significant involvement in the commercial 
fishing industry for three of the last five years; 
or 

(b) Significant involvement in commercial fishing 
or in the commercial fishing industry prior to 
the last five years; or 



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(c) Greater than 50 percent of the applicant' s total 
annual income per year for at least three years 
derived from commercial fishing; or 

(d) Greater than 75 percent of the apphcant's total 
annual income for three of the last five years 
being derived from commercial fishing; or 

(e) In the case of an applicant who has turned 16 
in the year prior to application, significant 
involvement in commercial fishing for two out 
of the last five years prior to reaching the age 
of 16 with a parent, guardian, grandparent or 
other adult family member; or 

(f) Significant family involvement of the 
applicant's family in commercial fishing for the 
last five years. For the purpose of this Sub- 
item, family shall include mother, father, 
brother, sister, spouse, children, grandparents 
or legal guardian. 

For the purposes of this Rule, significant involvement 
means persons or corporations who are engaged in the 
actual taking of fish, from the waters of the State, or 
other states, jurisdictions, or federal waters, or any 
licensed dealer who purchases fish at the point of 
landing or their employees at the point of landing. 
Significant involvement does not include activities 
such as those who transport fish from the point of 
landing; those who sell or make commercial or 
recreational fishing gear; those who operate bait and 
tackle shops, unless they are engaged in the actual 
taking of bait for sale; or those who work in fish 
markets or crab picking operations. 
(2) Compliance with Applicable Laws and Regulations: 

(a) The applicant shall not have any licenses, 
endorsements or commercial fishing vessel 
registrations issued by the Division of Marine 
Fisheries or the right to hold such under 
suspension or revocation at the time of 
application or during the eligibility review; or 

(b) If selected for the Standard Commercial 
Fishing License Eligibility Pool, the applicant 
shall become ineligible for the Standard 
Commercial Fishing License Eligibility Pool if 
any licenses, endorsements or registrations or 
the right to hold such issued by the Division of 
Marine Fisheries are suspended or revoked; or 

(c) Four convictions within the last three years or 
the number of convictions which would cause 
suspension or revocation of license, 
endorsement, or registration within the last 
three years shall result in the application being 
denied; or 

(d) A record of habitual violations evidenced by 
eight or more convictions in the last 1 years 
shall result in the application being denied; 

For purposes of eligibility for the Standard 
Commercial Fishing License Eligibility Pool, the term 
convictions shall include but not be limited to any 



conviction for violation of any provision of G.S. 1 13 
and any rule implementing or authorized by such 
statutes; any conviction for violation of G.S. 76^0 and 
any rule implementing or authorized by such statute; 
any conviction of G.S. 75A and any rule 
implementing or authorized by such statutes; any 
conviction for violation of any provision of Article 7 
of G.S. 143B and any rule implementing or authorized 
by such statutes; any conviction of resist, obstruct, or 
delay involving a Marine Patrol Officer or Wildlife 
Officer under G.S. 14-223; and any conviction 
involving assaultive behavior toward a Marine Patrol 
Officer or other governmental official of the 
Department of Environment and Natural Resources or 
the Wildlife Commission. 

Applicants for the Standard Commercial Fishing 
License Eligibility Pool must provide certification that 
the applicant does not have four or more marine or 
estuarine resource violations during the previous three 
years. 
(3) All applicants for the Standard Commercial Fishing 
License Eligibility Pool must meet all other statutory 
eligibility requirements for the Standard Commercial 
Fishing License. 

Authority G.S. 113-134; 113-168.1; 113-168.2; 143B-289.52; 
S.L. 1998-225, s. 4.24; 
Eff. August 1.2000. 

CHAPTER 7 - COASTAL MANAGEMENT 

SUBCHAPTER 7H - STATE GUIDELINES FOR 
AREAS OF ENVIRONMENTAL CONCERN 

SECTION .0200 - THE ESTUARINE SYSTEM 

.0209 COASTAL SHORELINES 

(a) Description. The Coastal Shorelines AEC category 
includes estuarine shorelines and public trust shorelines. 
Estuarine shorelines are those non-ocean shorelines extending 
from the mean normal high water level or normal water level 
along the estuarine waters, estuaries, sounds, bays, and brackish 
waters, and public trust areas as set forth in an agreement adopted 
by the Wildlife Resources Commission and the Department of 
Environment and Natural Resources [described in Rule .0206(a) 
of this Section] for a distance of 75 feet landward. For those 
estuarine shorelines immediately contiguous to waters classified 
as Outstanding Resource Waters by the Environmental 
Management Commission, the estuarine shoreline AEC shall 
extend to 575 feet landward from the mean normal high water 
level or normal water level, unless the Coastal Resources 
Commission establishes the boundary at a greater or lesser extent 
following required public hearing(s) within the affected county or 
counties. Public trust shorelines are those non-ocean shorelines 
immediately contiguous to public trust areas, as defined in Rule 
7H .0207(a) of this Section, located inland of the dividing line 
between coastal fishing waters and inland fishing waters as set 



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forth in that agreement and extending 30 feet landward of the 
normal high water level. 

(b) Significance. Development within coastal shorelines 
influences the quality of estuarine and ocean life and is subject to 
the damaging processes of shore front erosion and flooding. The 
coastal shorelines and wetlands contained within them serve as 
barriers against flood damage and control erosion between the 
estuary and the uplands. Coastal shorelines are the intersection of 
the land and aquatic elements of ht estuarine and ocean system, 
often integrating influences from both the land and the sea in 
wetland areas. Some of these wetlands are among the most 
productive natural elements of North Carolina and they support 
the fiinctions of and habitat for many valuable commercial and 
sport fisheries of the coastal area. Many land-based activities 
influence the quality and productivity of estuarine waters. Some 
important features of the coastal shoreline include wetlands, flood 
plains, bluff shorelines, mud and sand flats, forested shorelines 
and other important habitat areas for fish and wildlife 

(c) Management Objective. The Management Objective is to 
ensure that shoreline development is compatible with both the 
dynamic nature of coastal shorelines as well as the values and the 
management objectives of the estuarine and ocean system. Other 
objectives are to conserve and manage the important natural 
features of the estuarine and ocean system so as to safeguard and 
perpetuate their biological, social, aesthetic, and economic values; 
to coordinate and establish a management system capable of 
conserving and utilizing these shorelines so as to maximize their 
benefits to the estuarine and ocean system and the people of North 
Carolina. 

(d) Use Standards. Acceptable uses shall be those consistent 
with the management objectives in Paragraph (c) of this Rule. 
These uses shall be limited to those types of development 
activities that will not be detrimental to the public trust rights and 
the biological and physical functions of the estuarine system 
Every effort shall be made by the permit applicant to avoid, 
mitigate or reduce adverse impacts of development, to estuarine 
and coastal systems through the planning and design of the 
development project. In every instance, the particular location, 
use, and design characteristics shall comply with the general use 
and specific use standards for coastal shorelines, and where 
applicable, the general use and specific use standards for coastal 
wetlands, estuarine waters, and public trust areas described in 
Rule .0208 of this Section. 

( 1 ) All development projects, proposals, and designs shall 
preserve and not weaken or eliminate natural barriers 
to erosion, including, but not limited to, peat 
marshland, resistant clay shorelines, and cypress-gum 
protective fringe areas adjacent to vulnerable 
shorelines. 

(2) All development projects, proposals, and designs shall 
limit the construction of impervious surfaces and areas 
not allowing natural drainage to only so much as is 
necessary to adequately service the major purpose or 
use for which the lot is to be developed. Impervious 
surfaces shall not exceed 30 percent of the AEC area 
of the lot, unless the applicant can effectively 
demonstrate, through innovative design, that the 



protection provided by the design would be equal to or 
exceed the protection by the 30 percent limitation. 
Redevelopment of areas exceeding the 30 percent 
impervious surface limitation can be permitted if 
impervious areas are not increased and the applicant 
designs the project to comply with the intent of the 
rule to the maximum extent practical. 

(3) Within the estuarine and public trust shoreline AEC's, 
new development, with the exception of water 
dependent uses, shah be located a distance of 30 feet 
landward of the normal high water level. Water 
dependent uses are those described in Rule 7H 
.0208(a)(1) of this Section. 

(4) All development proj ects, proposals, and designs shall 
comply with the following mandatory standards of the 
North Carolina Sedimentation Pollution Control Act 
of 1973: 

(A) All development projects, proposals, and 
designs shall provide for a buffer zone along 
the margin of the estuarine water which is 
sufficient to confine visible siltation within 25 
percent of the buffer zone nearest the land 
disturbing development 

(B) No development project proposal or design 
shall permit an angle for graded slopes or fill 
which is greater than an angle which can be 
retained by vegetative cover or other 
erosion-control devices or structures. 

(C) All development projects, proposals, and 
designs which involve uncovering more than 
one acre of land shall plant a ground cover 
sufficient to restrain erosion within 30 working 
days of completion of the grading; provided 
that this shall not apply to clearing land for the 
purpose of forming a reservoir later to be 
inundated. 

(5) Development shall not have a significant adverse 
impact on estuarine and ocean resources. Significant 
adverse impacts shall include but be limited to 
development that would directly or indirecdy impair 
water quality standards, increase shoreline erosion, 
alter coastal weriands or Submerged Aquatic 
Vegetation (S A V), deposit spoils waterward of normal 
water level or normal high water, or cause degradation 
of shellfish beds. 

(6) Development shall not interfere wath existing public 
rights of access to, or use of, navigable waters or 
public resources. 

(7) No public facility shall be permitted if such facility is 
likely to require public expenditures for maintenance 
and continued use, unless it can be shown that the 
public purpose served by the facility outweighs the 
required public expenditures for construction, 
maintenance, and continued use. For the purpose of 
this standard, "public facility" shall mean a project 
which is paid for in any part by public funds. 

(8) Development shall not cause irreversible damage to 



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valuable, documented historic architectural or 
archaeological resources by the local historic 
commission or the North Carolina Department of 
Cultural Resources. 
(9) Established common-law and statutory public rights of 
access to the public trust lands and waters in estuarine 
areas shall not be eliminated or restricted. 
Development shall not encroach upon public 
accessways nor shall it limit the intended use of the 
accessways. 
(10) Within the AEC for shorelines contiguous to waters 
classified as Outstanding Resource Waters by the 
EMC, no CAMA permit shall be approved for any 
project which would be inconsistent with appUcable 
use standards adopted by the CRC, EMC or MFC for 
estuarine waters, public trust areas, or coastal 
wetlands. For development activities not covered by 
specific use standards, no permit shall be issued if the 
activity would, based on site specific information, 
materially degrade the water quality or outstanding 
resource values unless such degradation is temporary. 

(e) Exceptions to the 30-foot buffer requirement. 
Development shall be exempted from the buffer requirement set 
out in Paragraph (d) of this Rule under the following 
circumstances: 

(1) Where strict application of the buffer requirement 
would preclude placement of a permanent single- 
family residential structure on lots, parcels and tracts 
platted prior to June 1, 1999, development shall 
comply with the buffer area requirement to the 
maximum extent feasible. Feasible means an 
altemative is available and capable of being done after 
taking into consideration cost, existing technology, 
proposed use, and overall 11 project purposes. The 
footprint of the single family residential structure shall 
not exceed 1000 square feet. Land disturbance is 
limited to only so much as is necessary to construct 
and provide access to the residence and to allow 
installation or connection of utilities such as water and 
sewer. At a minimum, non-water dependent 
development shall be located a distance landward of 
the normal high water or normal water level equal to 
20 percent of the greatest depth of the lot. 

(2) Existing structures that encroach into the applicable 
buffer area may be replaced or repaired consistent with 
the criteria set out in 7 J .0201 and 7 J .02 11. 

(f) The buffer requirements of paragraph (d) of this rule will 
not apply to Coastal Shorelines where the Environmental 
Management Commission (EMC) has adopted rules that contain 
buffer standards, or to Coastal Shorelines where the EMC adopts 
such rules, upon the effective date of those rules. 

(g) Specific Use Standards for ORW Coastal Shorelines. 

(1) Within the AEC for estuarine public trust shorelines 
contiguous to waters classified as ORW by the EMC, 
all development projects, proposals, and designs shall 
limit the built upon area to no more than 25 percent of 
the AEC area of the land to be developed or any lower 



site specific percentage as adopted by the EMC as 
necessary to protect the exceptional water quality and 
outstanding resource values of the ORW, and shall: 

(A) have no stormwater collection system; 

(B) provide a buffer zone of at least 30 feet from 
the normal high water line or normal water 
line; 

(C) otherwise be consistent with the use standards 
set out in Paragraph (d) of this Rule. 

(2) Development (other than single- family residential lots) 
more than 75 feet from the normal high water line or 
normal water line but within the AEC that, as of June 
1, 1989: 

(A) the development has a CAMA permit 
application in process, or 

(B) the development has received preliminary 
subdivision plat approval or preliminary site 
plan approval under applicable local 
ordinances, and in which financial resources 
have been invested in design or improvement; 

(3) Single-family residential lots that would not be 
buildable under the low-density standards defined in 
Paragraph (g)(1) of this Rule may be developed for 
single-family residential purposes so long as the 
development complies with those standards to the 
maximum extent possible. 

(4) For ORWs nominated subsequent to June 1 , 1 989, the 
effective date in Paragraph (g)(2) of this Rule shall be 
the dates of nomination by the EMC. 

Authority G.S. 113A-107(bJ; 113A-108; 113A-1 13(b); 113A-124; 
Eff. August 1,2000. 

CHAPTER 7 - COASTAL MANAGEMENT 

SUBCHAPTER 7J - PROCEDURES FOR 
HANDLING MAJOR DEVELOPMENT PERMITS: 

VARL4NCE REQUESTS: APPEALS FROM 

MINOR DEVELOPMENT PERMIT DECISIONS: 

AND DECLARATORY RULINGS 

SECTION .0200 - APPLICATION PROCESS 

.0204 PROCESSING THE APPLICATION 

(a) On receipt of a CAMA major development and/or dredge 
and fill permit application by the Department, a letter shall be sent 
to the applicant acknowledging receipt. 

(b) Application processing shall begin when an application is 
accepted as complete. Before an application will be accepted as 
complete, the following requirements must be met; 

(1) a current application form must be submitted; 

(2) all questions on the application form must be 
completed or the letters "N/A" must be placed in each 
section that does not apply; 

(3) an accurate work plan as described in 1 5 A NCAC 7J 
.0203 herein must be attached to all CAMA major 



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development and/or dredge and fill permit 
applications; 

(4) a copy of a deed or other instrument under which the 
applicant claims title must accompany a CAMA major 
development and/or dredge and fill permit application; 

(5) notice to adjacent riparian landowners must be given 
as follows: 

(A) Certified return mail receipts (or copies 
thereoO indicating that adjacent riparian 
landowners (as identified in the permit 
application) have been sent a copy of the 
application for the proposed development must 
be included in a CAMA major development 
and/or dredge and fill permit application. Said 
landowners have 30 days fi'om the date of 
notification in which to comment. Such 
comments will be considered by the 
Department in reaching a final decision on the 
application. 

(B) For CAMA minor development permits, the 
applicant must give actual notice of his 
intention to develop his property and apply for 
a CAMA minor development permit to all 
adjacent riparian landowners. Actual notice 
can be given by sending a certified letter, 
informing the adjoining property owner in 
person or by telephone, or by using any other 
method which satisfies the Local Permit 
Officers that a good faith effort has been made 
to provide the required notice; 

(6) the application fee must be paid as set out in this 
Subparagraph: 

(A) Major development permit - Application fees 
shall be in the form of a check or money order 
payable to the Department. The application fee 
for private, non-commercial development shall 
be two hundred fifty dollars ($250.00). The 
application fee for a public or commercial 
project shall be four hundred dollars ($400.00). 

(B) Minor development permit - Application fees 
shall be in the form of a check or money order 
payable to the permit-letting agency in the 
amount of one hundred dollars ($100.00). 
Monies so collected may be used only in the 
administration of the permit program; 

(7) any other information the Department or local permit 
officer deems necessary for a review of the 
application must be provided. Any application not in 
compliance with these requirements will be returned to 
the applicant along with a cover letter explaining the 
deficiencies of the application and will not be 
considered accepted until it is resubmitted and 
determined to be complete and sufficient. If a local 
permit officer receives an application for a permit that 
the local permit officer lacks authority to grant, the 
permit officer shall return the application with 



information as to how the application may be properly 
considered; and 
(8) for development proposals subject to review under the 
North Carolina Environmental Pohcy Act (NCEPA), 
G.S. 1 13A-100 et. seq., the permit application will be 
complete only on submission of the appropriate 
environmental assessment document. 

(c) Upon acceptance of a major development and/or dredge 
and fill permit as complete, the Department shall send a letter to 
the applicant setting forth the data on which acceptance was 
made. 

(d) If the application is found to be incomplete or inaccurate 
after processing has begim or if additional information fi-om the 
applicant is necessary to adequately assess the project, the 
processing shall be terminated pending receipt of the necessary 
changes or necessary information from the applicant. During the 
pendency of any termination of processing, the permit processing 
period shall not run. If the changes or additional information 
significantly alters the project proposal, the application shall be 
considered new and the permit processing period will begin to run 
from that date. 

(e) Any violation occuiring at a proposed project site for 
which an application is being reviewed shall be processed 
according to the procedures in 15A NCAC 7J .0408 - 0410. If 
the violation substantially altered the proposed project site, and 
restoration is deemed necessary, the applicant shall be notified 
that processing of the application will be suspended pending 
compliance with the notice of required restoration. Satisfactory 
restoration of any unauthorized development that has 
substantially altered a project site is deemed necessary to allow a 
complete review of the application and an accurate assessment of 
the project's potential impacts. The applicant shall be notified that 
permit processing has resumed, and that a new processing 
deadline has been established once the required restoration has 
been deemed satisfactory by the Division of Coastal Management 
or Lx)cal Permit Officer. 

(f) If during the public comment period a question is raised as 
to public rights of access across the subject property, the Division 
of Coastal Management shall examine the access issue prior to 
making a permit decision. Any individual or governmental entity 
initiating action to judicially recognize a public right of access 
must obtain a court order to suspend processing of the permit 
application. Should the parties to legal action resolve the issue, 
permit processing shall continue. 

Authority G.S. 113-229; 113(A) -119; 113(A) -119.1; 113(A) - 
122(c); 113A-124; 
Eff. August 1,2000. 

SECTION .0400 - FINAL APPROVAL 
AND ENFORCEMENT 

.0404 DEVELOPMENT PERIOD EXTENSION 

(a) Where no development has been initiated during the 
development period, the permitting authority shall extend the 
authorized development period for no more than two years upon 



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receipt of a signed and dated request from the applicant 
containing the following: 

(1) a statement of the intention of the applicant to 
complete the work within a reasonable time; 

(2) a statement of the reasons why the project will not be 
completed before the expiration of the current permit; 

(3) a statement that there has been no change of plans 
since the issuance of the original permit other than 
changes that would have the effect of reducing the 
scope of the project, or, previously approved permit 
modifications; 

(4) notice of any change in ownership of the property to 
be developed and a request for transfer of the permit if 
appropriate; and 

(5) a statement that the project is in compliance with all 
conditions of the current permit. 

Where substantial development, either within or outside the 
AEC, has begun and is continuing on a permitted project, the 
permitting authority shall grant as many two year extensions as 
necessary to complete the initial development. Renewals for 
maintenance and repairs of previously approved projects may be 
granted for periods not to exceed 10 years. 

(b) When an extension request has not met the criteria of 
Paragraph (a) of this Rule, the Department may circulate the 
request to the commenting state agencies along with a copy of the 
original permit application. Commenting agencies will be given 
three weeks in which to comment on the extension request. Upon 
the expiration of the commenting period the Department will 
notify the applicant promptly of its actions on the extension 
request 

(c) Notwithstanding Paragraphs (a) and (b) of this Rule, an 
extension request may be denied on making findings as required 
in either G.S. 113A-120 or G.S. 113-229(e). Changes in 
circumstances or in development standards shall be considered 
and applied to the maximum extent practical by the permitting 
authority in making a decision on an extension request. 

(d) The applicant for a major development extension request 
must submit, with the request a check or money order payable to 
the Department in the sum of one hundred dollars ($100.00). 

(e) Modifications to extended permits may be considered 
pursuant to 15A NCAC 7 J .0405. 

Authority G.S. 113A-119; 113A-124(c)(8): 
Eff. August 1.2000. 

.0405 PERMIT MODIFICATION 

(a) An applicant may modify his permitted major development 
and/or dredge and fill project only after approval by the 
Department. In order to modify a permitted project the applicant 
must make a written request to the Department showing in detail 
the proposed modifications. Minor modifications may be shown 
on the existing approved application and plat. Modification 
requests which, in the opinion of the Department are major will 
require a new application. Modification requests are subject to 
the same processing procedure applicable to original permit 
applications. A permit need not be circulated to all agencies 
commenting on the original application if the Commission 



determines that the modification is so minor that circulation would 
serve no purpose. 

(b) Modifications to a permitted project which are imposed or 
made at the request of the U.S. Army Corps of Engineers or other 
federal agencies must be approved by the Department under 
provisions of 

Paragraph (a) of this Rule dealing with permit modification 
procedures. 

(c) Modifications of projects for the benefit of private 
waterfront property owners which meet the following criteria 
shall be considered minor modifications and shall not require a 
new permit application, but must be approved under the 
provisions of Paragraph (a) of this Rule: 

(1) for bulkheads: 

(A) Bulkhead must be positioned so as not to 
extend more than an average distance of two 
feet waterward of the mean high water contour; 
in no place shall the bulkhead be more than 
five feet waterward of the mean high water 
contour; and 

(B) All backfill must come from an upland source; 
and 

(C) No marsh area may be excavated or filled; and 

(D) Work must be undertaken because of the 
necessity to prevent significant loss of private 
residential property due to erosion; and 

(E) The bulkhead must be constructed prior to any 
backfilling activities; and 

(F) The bulkhead must be constructed so as to 
prevent seepages of backfill materials through 
the bulkhead; and 

(G) The bulkhead may not be constructed in the 
Ocean Hazard AEC; 

(2) for piers, docks and boathouses: 

(A) The modification or addition may not be within 
150 feet of the edge of a federally-maintained 
channel; and 

(B) The structure, as modified, must be 200 feet or 
less in total length offshore; and 

(C) The structure, as modified, must not extend 
past the four feet mean low water contour line 
(four feet depth at mean low water) of the 
waterbody; and 

(D) The project as modified, must not exceed six 
feet in width; and 

(E) The modification or addition must not include 
an enclosed structure; and 

(F) The project shall continue to be used for 
private, residential purposes; 

(3) for boatramps: 

(A) The project as modified, would not exceed 1 
feet in width and 20 feet offshore; and 

(B) The project shall continue to be used for 
private, residential purposes. 

(d) An applicant may modify his permitted minor 
development project only after approval by the local 



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permit-letting authority. In order to modify a permitted project 
the apphcant must make a written request to the local minor 
permit-letting authority showing in detail the proposed 
modifications. The request shall be reviewed in consultation with 
the appropriate Division of Coastal Management field consultant 
and granted if all of the following provisions are met: 

(1) The size of the project is expanded less than 20 
percent of the size of the originally permitted project; 
and 

(2) A signed, written statement is obtained fi-om all 
adjacent riparian property owners indicating they have 
no objections to the proposed modifications; and 

(3) The proposed modifications are consistent with all 
local, state, and federal standards and local Land Use 
Plans in effect at the time of the modification requests; 
and 

(4) The type or nature of development is not changed. 
Failure to meet these provisions shall necessitate the submission 
of a new permit application. 

(e) The applicant for a major permit modification must submit 
with the request a check or money order payable to the 
Department in the sum of one hundred dollars ($100.00) for a 
minor modification and two hundred fifty dollars ($250.00) for a 
major modification. 

Authority G.S. 113A-119; 113A-124(c)(5); 1 13-229; 
Eff. August 1.2000. 

CHAPTER 16 - ADULT HEALTH 

SUBCHAPTER 16A - CHRONIC DISEASE 

SECTION .1100 -CANCER DIAGNOSTIC AND 
TREATMENT PROGRAM 

.1104 COVERED SERVICES 

(a) Covered services shall include diagnostic and treatment 
services for cancer or a condition suggestive of cancer. Physical 
therapy following surgery, where medically indicated, is an 
approved treatment service. 

(b) Service restrictions: 

( 1 ) Dental treatment is not covered except in cases of head 
and neck cancer when necessary for the delivery of 
oncologic care. 

(2) The Program shall not cover late discharge fees, 
transportation, telephone calls, or other miscellaneous 
charges. 

(3) Cosmetic surgery shall not be covered. This does not 
preclude the covei"age of reconstructive surgery for 
patients for whom the Program has paid for a 
treatment service related to their current diagnosis. 

(4) Ancillary diagnostic studies shall be authorized only 
when they are determined by the Program to be 
directly related to the confirmation of a diagnosis of 
cancer or are necessary for treatment planning. 

(5) The Program may authorize reimbursement for up to 



two follow-up office visits after completion of 
diagnostic studies or treatment. These visits shall be 
included within the days allowed for diagnostic and 
treatment services. 

(6) Treatment for patients suspected of having cervical 
intraepithelial neoplasia shall be performed in 
accordance with the guidelines of the American 
College of Obstetricians and Gynecologists (ACOG) 
contained in Technical Bulletin Number 1 83 - August 
1993, which is incorporated herein by reference in 
accordance with G.S. 150B-21.6, along with any 
subsequent amendments and editions. Copies of the 
guidelines may be obtained at no cost by calling 
(252)715-3757 or by writing to the Cancer Control 
Program, P.O. Box 27687, Raleigh, NC 2761 1-7687. 

(7) The use of any course of treatment not recognized as 
having scientifically established medical value nor 
accepted as standard medical treatment for the 
condition being treated, as determined by the Program, 
will not be covered. 

(8) Inpatient services shall not be authorized unless the 
hospital is licensed in the State of North Carolina 
under General Statute 1 3 1 E-5 , the Hospital Licensure 
Act, or under conditions of participation for Medicare 
(Titie XVin of tiie Social Security Act) or Medicaid 
(Titie XIX of the Social Security Act). 

(c) Meals and overnight accommodations, in a motel, home, 
boarding house, ambulatory care facility, or similar facihty for 
patients receiving covered services on an outpatient basis shall be 
covered by the Program if the patient's residence is at least 50 
miles from the medical facility providing the outpatient services. 

(1) Reimbursement for actual expenses shall not exceed 
the maximum allowable subsistence (meals and 
accommodations) for state employees in the course of 
their official duties, found in G.S. 138-6, based on 
those rates of reimbursement in effect at the time of 
the authorization of these expenses by the Program. 

(2) Program authorization of meals and accommodations 
shall be limited to the maximum number of days of 
service coverage. However, the Program shall cover 
meals and accommodations for weekends between the 
periods during which treatment is authorized. 

(3) Authorization Requests for meals and 
accommodations shall state the number of days which 
will be required, as well as the dates of service on 
which outpatient diagnostic or treatment services shall 
be rendered. 

Authority G.S. 130A-205. 
Amended Eff. August 1. 2000. 



TITLE 21 - OCCUPATIONAL LICENSING BOARDS 
CHAPTER 16 - BOARD OF DENTAL EXAMINERS 



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SUBCHAPTER 16G - DENTAL HYGIENISTS 

.0101 FUNCTIONS WfflCH MAY BE DELEGATED 

A dental hygienist may be delegated appropriate fiinctions to be 
performed under the direct control and supervision of a dentist 
who shall be personally and professionally responsible and liable 
for any and all consequences or results arising from performance 
of such acts and functions. In addition to the functions set out in 
G.S. 90-22 1(a) and 21 NCAC 16H. 0201, functions which may 
be delegated to a dental hygienist include: 

( 1 ) Take impressions for study models and opposing casts 
which will not be used for construction of dental 
appliances, but which may be used for the fabrication 
of adjustable orthodontic appliances; 

(2) Apply sealants to teeth that do not require mechanical 
alteration prior to the application of such sealants, 
provided that a dentist has examined the patient and 
prescribed the procedure; 

(3) Insert matrix bands and wedges; 

(4) Place cavity bases and liners; 

(5) Place and/or remove rubber dams; 

(6) Cement temporary restorations using temporary 
cement; 

(7) Apply acid etch materials/rinses; 

(8) Apply bonding agents; 

(9) Remove periodontal dressings; 

(10) Remove sutures; 

(11) Place gingival retraction cord; 

(12) Remove excess cement; 

(13) Flush, dry and temporarily close root canals; 

( 1 4) Place and remove temporary restorations; 

(15) Place and tie in or untie and remove orthodontic arch 
wires; 

( 1 6) Insert interdental spacers; 

( 1 7) Fit (size) orthodontic bands or brackets; 

(18) Apply dentin desensitizing solutions; 

( 1 9) Perform periodontal screening; 

(20) Perform periodontal probing; 

(21) Perform subgingival exploration for or removal of 
hard or soft deposits; 

(22) Perform sulcular irrigation; 

(23) Apply sulcular antimicrobial or antibiotic agents 
which are resorbable; 

(24) Perform extra-oral adjustments which affect function, 
fit, or occlusion of any temporary restoration or 
appliance; and 

(25) Initially form and size orthodontic arch wires and 
place arch wires after final adjustment and approval by 
the dentist 

Authority G.S. 90-221; 90-223(b); 
Amended Eff August 1. 2000. 



.0103 



PROCEDURES PROfflBITED 



Those procedures which require the professional education and 
skill of a dentist and may not be delegated to a dental hygienist 
shall include, but shall not be limited to: 

( 1 ) Comprehensive examination, diagnosis and treatment 
planning; 

(2) Surgical or cutting procedures on hard or soft tissues, 
including laser, air abrasion or micro-abrasion 
procedures; 

(3) Placement or removal of sulcular nonresorbable 
agents; 

(4) The issuance of prescription drugs, medications or 
work authorizations; 

(5) Taking of impressions for final fixed or removable 
restorations or prostheses; 

(6) Final placement or intraoral adjustment of a fixed or 
removable appliance; 

(7) Intraoral occlusal adjustments which affect fiinction, 
fit, or occlusion of any temporary or permanent 
restoration or appliance; 

(8) Extra-oral occlusal adjustments which affect fiinction, 
fit, or occlusion of any permanent restoration or 
appliance; 

(9) Performance of direct pulp capping or pulpotomy; 

( 1 0) Placement of sutures; 

(11) Final placement or cementation of orthodontic bands 
or brackets; 

(12) Placement or cementation of final restorations; 

(13) Administration of any anesthetic by any route except 
the administration of topically-applied agents intended 
to anesthetize only cutaneous tissue; and 

(14) Intraoral use of a high speed handpiece. 

Authority G.S. 90-22] (a); 90-223(b); 
Amended Eff. August 1. 2000. 

SUBCHAPTER 16H - DENTAL ASSISTANTS 

SECTION .0100 - CLASSIFICATION AND TRAINING 

.01 03 DENTAL ASSISTANT II 

A Dental Assistant II is an expanded duty assistant who has 
completed training in accordance with Rule .0 1 04 of this Section. 
Under direct control and supervision, a Dental Assistant II may be 
delegated intra-oral procedures in accordance with 2 1 NCAC 1 6H 
.0203 the supervising dentist deems appropriate, with the dentist 
personally and professionally responsible for any and all 
consequences or results arising from the performance of said acts. 
All delegated procedures must be reversible in nature. 

Authority G.S 90-29(c)(9); 
Amended Eff. August 1. 2000. 

.0104 APPROVED EDUCATION AND TRAINING 
PROGRAMS 

To be classified as a Dental Assistant II, an assistant must meet 



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1766 



APPROVED RULES 



one (1) of the following criteria: 

(1) successful completion of: 

(a) an ADA-accredited dental assisting program 
and current certification in CPR; or 

(b) one academic year or longer in an ADA- 
accredited dental hygiene program, and current 
certification in CPR; or 

(2) successful completion of 

(a) flill-time employment and experience as a 
chairside assistant for two years (3,000 hours) 
of the preceding five, during which period the 
assistant may be trained in any dental delivery 
setting and allowed to perform the functions of 
a Dental Assistant II under the direct control 
and supervision of a licensed dentist; 

(b) a 3 -hour course in sterilization and infection 
control; 

(c) a 3-hour course in dental office emergencies; 

(d) radiology training consistent with G.S. 90- 
29(c)(12); and 

(e) current certification in CPR; or 

(3) successfiil completion of the certification examination 
administered by the Dental Assisting National Board, 
and current certification in CPR. 

Authority G.S. 90-29(c)(9): 
Amended Eff. August 1, 2000. 

SECTION .0200 - PERMITTED FUNCTIONS OF 
DENTAL ASSISTANT 

.0201 GENERAL PERMITTED FUNCTIONS OF 
DENTAL ASSISTANT I 

(a) A Dental Assistant I may assist a dentist as a chairside 
assistant as long as the acts and fimctions of the Dental Assistant 
I do not constitute the practice of dentistry or dental hygiene. 

(b) A Dental Assistant I may do and perform only routine 
dental assisting procedures such as oral hygiene instruction; 
chairside assisting; application of topical fluorides or topical 
anesthetics; and exposure of radiographs, provided that the 
assistant can show evidence of compliance with radiography 
training consistent with G.S. 90-29(c)(I2). However, fianctions 
may be delegated to a Dental Assistant I pursuant to 2 1 NCAC 
16H .0104(2)(a). 

Authority G.S. 90-29(c)(9); 90-48; 
Amended Eff. August 1, 2000. 

.0202 SPECIFIC PERMITTED FUNCTIONS OF 
DENTAL ASSISTANT I 

Authority G.S 90-29(c)(9); 90-48; 
Repealed Eff. August 1, 2000. 



.0203 



PERMITTED FUNCTIONS OF DENTAL 



ASSISTANT n 

A Dental Assistant II may perform any and all acts or 
procedures which may be performed by a Dental Assistant I. In 
addition, a Dental Assistant II may be delegated the following 
functions to be performed under the direct control and 
supervision of a dentist who shall be personally and 
professionally responsible and liable for any and all 
consequences or results arising from the performance of such acts 
and fimctions: 

( 1 ) Take impressions for study models and opposing casts 
which will not be used for construction of dental 
appliances, but which may be used for the fabrication 
of adjustable orthodontic appliances; 

(2) Apply sealants to teeth that do not require mechanical 
alteration prior to the application of such sealants, 
provided a dentist has examined the patient and 
prescribed the procedure; 

(3) Insert matrix bands and wedges; 

(4) Place cavity bases and liners; 

(5) Place and/or remove rubber dams; 

(6) Cement temporary restorations using temporary 
cement; 

(7) Apply acid etch materials/rinses; 

(8) Apply bonding agents; 

(9) Remove periodontal dressings; 

(10) Remove sutures; 

(11) Place gingival retraction cord; 

( 1 2) Remove excess cement; 

(13) Flush, dry and temporarily close root canals; 

( 1 4) Place and remove temporary restorations; 

(15) Place and tie in or untie and remove orthodontic arch 
wires; 

(16) Insert interdental spacers ; 

( 1 7) Fit (size) orthodontic bands or brackets; 

( 1 8) -Apply dentin desensitizing solutions; 

(1 9) Perform extra-oral adjustments which affect fiinction, 
fit or occlusion of any temporary restoration or 
appliance; 

(20) Initially form and size orthodontic arch wires and 
place arch wires after final adjustment and approval by 
the dentist; 

(2 1 ) Polish the clinical crown using only; 

(a) a hand-held brush and appropriate polishing 
agents; or 

(b) a combination of a slow speed handpiece (not 
to exceed 10,000 rpm) with attached mbber 
cup or bristle brush, and appropriate polishing 
agents. 

Before a Dental Assistant H can utilize a slow speed handpiece 
with rubber cup or bristle brush attachment, a formal educational 
course in coronal polishing consisting of at least 7 hours shall be 
completed. A polishing procedure shall in no way be represented 
to the patient as a prophylaxis and no specific charge shall be 
made for such unless the dentist has performed an evaluation for 
calculus, deposits, or accretions and a dentist or dental hygienist 
has removed any substances detected. 



1767 



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14:19 



APPROVED RULES 



Authority G.S. 90-29(c)(9); 90-48; 
Amended Eff August 1, 2000. 

.0205 SPECIFIC PROHIBITED FUNCTIONS OF 
DENTAL ASSISTANTS I AND H 

Those specific functions which shall not be delegated to either 
a Dental Assistant I or a Dental Assistant II include those 
procedures prohibited in 21 NCAC 16G .0103 for Dental 
Hygienists. In addition, neither a Dental Assistant I nor a Dental 
Assistant II shall perform a prophylaxis, or shall perform 
periodontal screening, periodontal probing, subgingival 
exploration for or removal of hard or soft deposits, or sulcular 
irrigation. 

Authority G.S. 90-29(c)(9); 90-48; 
Amended Eff August 1. 2000 

SUBCHAPTER 16Q - GENERAL ANESTHESIA AND 
SEDATION 

SECTION .0200 - GENERAL ANESTHESIA 

.0201 CREDENTLU^S AND PERMIT 

(a) No dentist shall employ or use general anesthesia on an 
outpatient basis for dental patients unless the dentist possesses a 
permit issued by the Board A dentist holding a permit shall be 
subject to review and shall only employ or use general anesthesia 
at a faciUty located in the State of North Carolina in accordance 
with 21 NCAC 16Q.0202. Such permit must be renewed 
annually. 

(b) Any dentist who wishes to administer general anesthesia to 
patients must apply to the Board for the required permit on a 
prescribed application form, submit an application fee of fifty 
dollars ($50.00), and produce evidence showing that he: 

(1) Has completed a minimum of one year of advanced 
training in anesthesiology and related academic 
subjects (or its equivalent) beyond the undergraduate 
dental school level in a training program approved by 
the Board; or 

(2) Has graduated fi^om a program certified by the 
American Dental Association in Oral and 
Maxillofacial Surgery; or 

(3) Is a Diplomate of or eligible for examination by the 
American Board of Oral and Maxillofacial Surgery; or 

(4) Is a Fellow of the American Dental Society of 
Anesthesiology; or 

(5) Is a dentist who has been administering general 
anesthetics in a competent manner for the five years 
preceding the effective date of this Rule. 

(c) A dentist who is qualified to administer general anesthesia 
in accordance with this Section and holds a general anesthesia 
permit is also authorized to administer sedation without obtaining 
a separate sedation permit 

(d) The dentist involved with the administration of general 
anesthesia shall be trained in and capable of administering 
advanced cardiac life support or its age-specific equivalent and 



auxiliary personnel shall be trained in and capable of 
administering basic life support. 

Authority G.S. 90-28; 90-30.1; 
Amended Eff. August 1, 2000. 

.0202 EQUIPMENT 

A dentist administering general anesthesia is solely responsible 
for providing that the environment in which the general anesthesia 
is to be administered meets the requirements established by the 
Board and provided to each permit holder. A dentist administering 
general anesthesia shall ensure that the facility is staffed with 
auxihary personnel who are capable of administering basic life 
support and have the capacity to effectively manage the procedure 
as well as any problems or emergency incidents that may occur as 
a result of the general anesthetic or secondary to an unexpected 
medical complication. 

Authority G.S 90-28; 90-30.1; 
Amended Eff. August 1, 2000. 

SECTION .0300 - SEDATION 

.0301 SEDATION CREDENTTALS AND PERMIT 

(a) A dentist may administer or employ a certified registered 
nurse anesthetist to administer sedation to dental patients on an 
outpatient basis provided he obtains a permit from the Board by 
submitting the appropriate information on an application form 
provided by the Board and pays a fee of fifty dollars ($50.00). 

(b) A dentist applying for a permit to administer sedation must 
meet at least one of the following criteria: 

( 1 ) Satisfactory completion of a minimum of 60 hours of 
didactic training and instruction in intravenous 
conscious sedation and satisfactory management of a 
minimum of 10 patients, under supervision, using 
intravenous sedation in a training program approved 
by the Board; or 

(2) Satisfactory completion of an undergraduate or post- 
graduate program which included intravenous 
conscious sedation training equivalent to that defined 
in Subparagraph (1) of this Rule; or 

(3) Satisfactory completion of an internship or residency 
which included intravenous conscious sedation 
training equivalent to that defined in Subparagraph ( 1 ) 
of this Rule; or 

(4) Authorization for the use of general anesthetics by 
holding a permit for the same issued by the Board; or 

(5) Utilization of a certified registered nurse anesthetist 
under his supervision to administer intravenous 
sedation to dental patients. 

(c) To be ehgible for a sedation permit, a dentist must operate 
within a facility which includes the capability of delivering 
positive pressure oxygen, staffed with supervised auxiliary 
personnel capable of administering basic life support and 
handling procedures, problems and emergencies incident thereto. 

(d) The dentist seeking a permit must: 



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1768 



APPROVED RULES 



(B) 
(C) 

(D) 



(1) be trained in and capable of administering advanced 
cardiac life support or its age-specific equivalent; or 

(2) be trained in and capable of administering basic life 
support and, in addition to the continuing education 
required each calendar year for license renewal, obtain 
four hours of continuing education each year in one or 
more of the following areas: 
(A) sedation; 

medical emergencies; 

monitoring FV sedation and the use of 

monitoring equipment; or 

pharmacology of drugs and agents used in FV 

sedation, 
(e) The Board may, based upon formal application, grant a 
permit authorizing the use of sedation to a dentist who has been 
utilizing sedation in a competent and effective manner for the five 
years preceding the effective date of this Rule, but who has not 
had the benefit of formal training as outlined in Paragraph (b) of 
this Rule, provided that said dentist 
meets the requirements of Paragraphs (c) and (d) of this Rule. 

Authority G.S. 90-28; 90-30.1; 
Amended Eff. August 1. 2000. 

.0302 EQUIPMENT 

(a) A dentist administering sedation is solely responsible for 
providing that the environment in which the sedation is to be 
administered meets the requirements established by the Board and 
provided to each permit holder. A dentist administering sedation 
shall ensure that the facility is staffed with auxiliary personnel 
who are capable of administering basic life support and have the 
capacity to effectively manage the procedure as well as any 
problems or emergency incidents that may occur as a result of the 
sedation or secondary to an unexpected medical complication. 

(b) Upon request, the holder of an anesthesia or sedation 
permit may travel to the office of a licensed dentist who does not 
hold such a permit and provide sedation services for the patients 
of that dentist who are undergoing dental procedures. The permit 
holder is solely responsible for providing that the office in which 
the sedation is administered meets the requirements established by 
the Board, that the required drugs and equipment are present, and 
that the permit holder utilizes auxiliary personnel who have the 
capacity to effectively manage the procedure and handle any 
problems or emergency incidents that may occur as a result of the 
sedation or secondary to an unexpected medical complication. 

Authority G.S. 90-28; 90-30.1; 
Amended Eff. August 1, 2000. 

SUBCHAPTER 16V - UNPROFESSIONAL CONDUCT 

SECTION .0100 - SECTION .0100 - UNPROFESSIONAL 
CONDUCT 

.0101 DEFINITION: UNPROFESSIONAL CONDUCT 

Unprofessional conduct by a dentist shall include, but not be 



limited to, the following: 

(1) Having a license to practice dentistry revoked, 
suspended, or otherwise acted against, including the 
denial of licensiu^e, by the licensing authority of 
another state, territory, or country; (For purposes of 
this Section, the surrender of a license under threat of 
disciplinary action shall be considered the same as if 
the licensee had been disciplined.) 

(2) Intentionally presenting false or misleading testimony, 
statements, or records to the Board or the Board's 
investigator or employees during the scope of any 
investigation, or at any hearing of the Board; 

(3) Committing any act which would constitute sexual 
assault or battery in connection wnth the provision of 
dental services; 

(4) Violating any lawful order of the Board previously 
entered in a disciplinary hearing, or failing to comply 
with a lawfiilly-issued subpoena of the Board; 

(5) Conspiring with any person to commit an act, or 
committing an act which would tend to coerce, 
intimidate, or preclude any patient or witness fi-om 
testifying against a licensee in any disciplinary 
hearing, or retaliating in any manner against any 
patient or other person who testifies or cooperates with 
the Board during any investigation under the Dental 
Practice or Dental Hygiene Acts; 

(6) Failing to identify to a patient, patient's guardian or the 
Board the name of an employee, employer, contractor, 
or agent who renders dental treatment or services upon 
request; 

(7) Prescribing, procuring, dispensing, or administering 
any controlled substance for personal use except those 
prescribed, dispensed, or administered by a 
practitioner authorized to prescribe them; 

(8) Pre-signing blank prescription forms or using pre- 
printed or rubber stamped prescription forms 
containing the dentist's signature or the name of any 
controlled substance; 

(9) Forgiving the co-payment provisions of any insurance 
policy, insurance contract, health prepayment contract, 
health care plan, or nonprofit health service plan 
contract by accepting the payment received fi-om a 
third party as full payment, unless the dentist discloses 
to the third party that the patient's payment portion will 
not be collected; 

( 1 0) Failing to provide radiation safeguards required by the 
Radiation Protection Section of the State Department 
of Environment, Health, and Natural Resources; 

(11) Having professional connection with or lending one's 
name to the unlawful practice of dentistry; 

(12) Using the name of any deceased or retired and 
licensed dentist on any office door, directory, 
stationery, bill heading, or any other means of 
communication any time after one year following the 
death or retirement from practice of said dentist; and 

(13) Failing to comply with any provision of any contract 



7769 



NORTH CAROLINA REGISTER 



April 3, 2000 



14:19 



APPROVED RULES 



or agreement with the Caring Dentist Program. 

Authority G.S. 90-28; 90-41; 90-48; 
Amended Eff. August 1. 2000. 

.0102 DEFINITION: UNPROFESSIONAL CONDUCT 
BY A DENTAL HYGIENIST 

Unprofessional conduct by a dental hygienist shall include, but 
not be limited to, the following: 

(1) Having a license to practice dental hygiene revoked, 
suspended, or otherwise acted against, including the 
denial of licensure, by the licensing authority of 
another state, territory, or country, (For purposes of 
this Section, the surrender of a license under threat of 
disciplinary action shall be considered the same as if 
the hcensee had been disciplined.) 

(2) Presenting false or misleading testimony, statements, 
or records to the Board or a Board employee during 
the scope of any investigation or at any hearing of the 
Board; 

(3) Committing any act which would constitute sexual 
assault or battery in connection with the provision of 
dental hygiene services; 

(4) Violating a lawful order of the Board previously 
entered in a disciplinary hearing or failing to comply 
with a lawiuUy-issued subpoena of the Board; 

(5) Conspiring with any person to commit an act, or 
committing an act which would tend to coerce, 
intimidate, or preclude any patient or witness from 
testiiying against a hcensee in any disciplinary 
hearing, or retaliating in any manner against any 
person who testifies or cooperates with the Board 
during any investigation of any licensee; 

(6) Failing to identify to a patient, patient's guardian, or 
the Board the name of any person or agent who 
renders dental treatment or services upon request; 

(7) Procuring, dispensing, or administering any controlled 
substance for personal use except those prescribed, 
dispensed, or administered by a practitioner 
authorized to prescribe them; 

(8) Acquiring any controlled substance from any 
pharmacy or other source by misrepresentation, fraud 
or deception; 

(9) Having professional connection with or lending one's 
name to the illegal practice of dental hygiene; and 

(10) Failing to comply with any provision of any contract 
or agreement with the Caring Dentist Program. 

Authority G.S. 90-223; 90-229; 
Amended Eff August 1. 2000. 



TITLE 23 - COMMUNITY COLLEGES 



CHAPTER 2 - COMMUNITY COLLEGES 



SUBCHAPTER 2C - COLLEGES: ORGANIZATION 
AND OPERATIONS 

SECTION .0500 - EQUIPMENT 

.0503 DONATED PROPERTY 

(a) A board of trustees may accept property donated to the 
college for any lawftil educational purpose that is consistent with 
the mission and purpose of the community college system. 

(b) Prior to a board of trustees accepting any property that 
restricts the use of funds derived from the sale or lease of the 
property, the college shall submit to the Department a copy of the 
document transferring the property. 

(c) Any fiinds derived from the sale or lease of property 
donated to a college for a specific educational purpose shall be 
used to accomplish that purpose. 

Authority G.S. 115D-15; 
Eff. August 1,2000. 

.0504 ACQUISITION OF EQUIPMENT 

(a) Boards of trustees may use state fiinds to support lease 
purchase and installment purchase contracts to acquire 
equipment. Contracts that exceed one hundred thousand 
($100,000) or a three-year term shall meet the following 
conditions: 

(1) Prior to obligating any state fiinds, the State Board 
shall approve each lease purchase or installment 
purchase contract. 

(2) Prior to submitting a lease purchase or installment 
purchase contract to the State Board for approval, the 
college board of trustees shall have approved the 
contract. 

(b) A board of trustees shall not have in effect at any one time 
more than five state-fionded contracts which are permitted under 
this rule. 

(c) The Department shall make an annual report to the State 
Board on system-wide use of state-fiinded lease purchase and 
installment purchase contracts exceeding one hundred thousand 
dollars ($100,000) or three-year terms. The report shall include 
the amount of state fiinds obligated for the next fiscal year. 

Authority G.S ll5D-58.5(b); 115D-5814; 
Eff. August 1,2000 

.0505 NONCERTIFIED SOURCE PURCHASES 

(a) Community colleges and the Center for Applied Textile 
Technology may purchase the same supplies, equipment, and 
materials from noncertified sources as provided in G.S. 1 15D- 
58.5 (b). 

(b) Each college or center shall submit to the Department a 
semi-annual report showing the number of purchases made from 
noncertified sources for supplies, equipment, or materials; the 
amount of funds expended for each purchase; and the amount of 
funds that would have been expended under state contract. 

(c) The Department shall monitor the use of noncertified 






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1770 






APPROVED RULES 



source purchases and shall make an annual report to the State 
Board. The report shall include the number of noncertified 
source purchases made by the colleges and the Center for 
Applied Textile Technology and the amount of funds expended. 

Authority G.S. 115D-5: 115D-20; 115D-58.14; 
Eff. August 1,2000. 



' 



1771 NORTH CAROLINA REGISTER April 3, 2000 14:19 



RULES REVIEW COMMISSION 



This Section contains the agenda for the next meeting of the Rules Review Commission on Thursday, April 13, 2000, 10:00 a.ra , 
at 1307 Glenwood Ave., Assembly Room, Raleigh, NC. Anyone wishing to submit written comment on any rule before the 
Commission should submit those comments to the RRC staff, the agency, and the individual Commissioners by Friday, April T^ 2000, 
at 5:00 p.m. Specific instructions and addresses may be obtained from the Rules Review Commission at 9 1 9-733-272 1 . Anyone 
wishing to address the Commission should notify the RRC staff and the agency at least 24 hours prior to the meeting. 



RULES REVIEW COMMISSION MEMBERS 



Appointed by Senate 

Teresa L. Smallwood, Chairman 
John Arrowood 

Laura Devan 

Jim Funderburke 

David Twiddy 



Appointed by House 

R. Palmer Sugg, 1 ^ Vice Chairman 

Jennie J. Hayman, 2"'* Vice Chairman 

Walter Futch 

Paul Powell 

George Robinson 



RULES REVIEW COMMISSION MEETING DATES 



April 13,2000 
May 18, 2000 
June 15, 2000 



July 20, 2000 
August 17,2000 
September 2 1,2000 



LOG OF FILINGS 
RULES SUBMITTED: February 20, 2000 through March 20, 2000 



AGENCY/DIVISION RULE NAME 


RULE CITATION 


ACTION 


AGRICULTURE, DEPARTMENT OF/STRUCTURAL PEST CONTROL COMMITTEE 




Definitions 


2 NCAC 34 .0102 


Amend 


Filing Call Office Locations 


2NCAC34.0319 


Repeal 


Branch Office 


2 NCAC 34 .0330 


Adopt 


Physical Barriers for Termite Control 


2 NCAC 34 .0509 


Adopt 


DHHS/DIVISION OF VOCATIONAL REHABILITATION SERVICES 




ApplicabiUty of Rules 


10 NCAC 20B .0201 


Amend 


Written Information for Applicants 


10 NCAC 20B .0202 


Amend 


and Clients 






Request for Administrative Review 


10 NCAC 20B .0203 


Amend 


Division Actions in Response to Request 


10 NCAC 20B .0204 


Amend 


Scheduling and Notice of Administrative 


10 NCAC 20B .0205 


Amend 


Review 






Appointment of Hearing Officer 


10 NCAC 20B .0206 


Amend 


and Mediator 






Scheduling and Notice of Mediation 


10 NCAC 20B .0207 


Amend 


Administrative Review 


10 NCAC 20B .0208 


Amend 


Response to Administrative Review 


10 NCAC 20B .0209 


Amend 


Decision 






Mediation 


10 NCAC 20B .0210 


Amend 


Procedures Governing Hearing 


10 NCAC 20B .0211 


Amend 


Conduct of Hearing 


10 NCAC 203 .0221 


Amend 


Hearing Officer's Decision 


10 NCAC 20B .0223 


Amend 


Extensions of Time 


10 NCAC 20B .0225 


Amend 


DHHS/SOCIAL SERVICES COMMISSION 







14:19 



NORTH CAROLINA REGISTER 



Aprils, 2000 



1772 



RULES REVIEW COMMISSION 



Services to Adoptive Applicants 


10NCAC41H.0304 


Amend 


Adoptive Home Recruitment 


10NCAC41P.0106 


Amend 


Personnel Requirements 


10NCAC42B.1201 


Amend 


Qiialifications of Medication Aides 


10NCAC42B.1213 


Adopt 


Medication Administration Competency 


10NCAC42B.1213 


Adopt 


Evaluation 






Storage Areas 


10NCAC42B.1407 


Amend 


Procedures for Discharge 


10NCAC42B.1707 


Amend 


Medications 


10NCAC42B.1803 


Amend 


Health Care Personnel Registry 


10NCAC42B.2406 


Adopt 


Definitions 


10NCAC42B.2501 


Adopt 


Persons Not Eligible for New Adult 


10NCAC42B.2502 


Adopt 


Care Home 






Adult Care Homes not Eligible 


10NCAC42B.2503 


Adopt 


Other Personnel Requirements 


10NCAC42C.2005 


Amend 


Staff Training and Competency 


10NCAC42C.2011 


Amend 


Training Program and Competency 


10NCAC42C.2012 


Amend 


Evaluation 






Qualifications of Medication Aides 


10NCAC42C.2013 


Adopt 


Medication Administration Competency 


I0NCAC42C.2014 


Adopt 


Evaluation 






Health Care Personnel Registry 


10NCAC42C.2015 


Adopt 


Storage Areas 


10NCAC42C.2207 


Amend 


Building Service Equipment 


10NCAC42C.2214 


Amend 


Health Care 


10NCAC42C.2302 


Amend 


Other Living Arrangements 


10NCAC42C.2501 


Repeal 


Requirements for Discharge or Transfer 


10NCAC42C.2505 


Repeal 


Discharge or Transfer of Residents 


10NCAC42C.2506 


Adopt 


Management of Drugs 


10NCAC42C.2703 


Repeal 


The License 


10NCAC42C.3401 


Amend 


Renewal of License 


10NCAC42C.3402 


Amend 


Resident Assessment 


10NCAC42C.3701 


Amend 


Licensed Health Professional Support 


10NCAC42C.3703 


Amend 


Medication Administration Policies 


10NCAC42C.3801 


Adopt 


and Procedures 






Medication Orders 


10NCAC42C.3802 


Adopt 


Medication Labels 


10NCAC42C.3803 


Adopt 


Medication Administration 


10NCAC42C.3804 


Adopt 


Self-Administration of Medications 


10NCAC42C.3805 


Adopt 


Medication Storage 


10NCAC42C.3806 


Adopt 


Medication Disposition 


10NCAC42C.3807 


Adopt 


Controlled Substances 


10 NCAC 42C .3808 


Adopt 


Pharmaceutical Care 


10NCAC42C.3809 


Adopt 


Pharmaceutical Services 


10 NCAC 42C .3810 


Adopt 


Definitions 


10 NCAC 42C .3901 


Adopt 


Persons Not Eligible for New Adult 


10 NCAC 42C .3902 


Adopt 


Care Home 






Adult Care Homes 


10 NCAC 42C .3903 


Adopt 


Management of Facilities 


10 NCAC 42D. 1301 


Amend 


The Co-Administrator 


1 NCAC 42D. 1302 


Repeal 


Management and Personal Care 


10 NCAC 42D .1303 


Adopt 


Aide Supervision 






Management of Facilities 


1 NCAC 42D. 1304 


Adopt 



1773 



NORTH CAROLINA REGISTER 



April 3, 2000 



14:19 



RULES REVIEW COMMISSION 



Qualifications of Administrator 


10NCAC42D.1401 


Repeal 


Qualifications of Supervisor-in-Charge 


10NCAC42D.1402 


Amend 


Staffing 


10NCAC42D.1407 


Amend 


Staff Competency and Training 


10NCAC42D.1410 


Amend 


Training Program and Competency 


10NCAC42D.1411 


Amend 


Evaluation 






Certification of administrator 


10NCAC42D.1412 


Adopt 


Responsibilities and Qualifications 


10NCAC42D.1413 


Adopt 


Qualifications of Medication Staff 


10NCAC42D.1414 


Adopt 


Medication Administration Competency 


10NCAC42D.1415 


Adopt 


Evaluation 






Staffing Chart 


10NCAC42D.1416 


Adopt 


Physical Environment 


10NCAC42D.1503 


Amend 


Other Requirements 


10NCAC42D.1605 


Amend 


Management of Drugs 


10NCAC42D.1804 


Amend 


Renewal of License 


10NCAC42D.1821 


Amend 


Health Care Personnel Registry 


10NCAC42D.1831 


Adopt 


Definitions Applicable to Special 


10NCAC42D.1901 


Adopt 


Care Units 






Special Care Unit Disclosure 


10NCAC42D.1902 


Adopt 


Licensure of Facihties with Special 


10NCAC42D.1903 


Adopt 


Care Units 






Special Care Unit Building Requirements 


10NCAC42D.1904 


Adopt 


Special Care Unit Policies and Procedures 


10NCAC42D.1905 


Adopt 


Admission to the Special Care Unit 


10NCAC42D.1906 


Adopt 


Special Care Unit Resident Profile 


10NCAC42D.1907 


Adopt 


Special Care Unit Staffing 


10NCAC42D.1908 


Adopt 


Special Care Unit Staff Orientation 


10NCAC42D.1909 


Adopt 


Other Applicable Rules for Special 


10NCAC42D.1910 


Adopt 


Care Units 






Definitions Applicable to Special 


10NCAC42D.2001 


Adopt 


Care Units 






Special Care Unit Disclosure 


10NCAC42D.2002 


Adopt 


Licensure of Facilities with Special 


10 NCAC 42D .2003 


Adopt 


Care Units 






Special Care Unit Building Requirements 


10NCAC42D.2004 


Adopt 


Special Care Unit Policies and Procedures 


10 NCAC 42D .2005 


Adopt 


Admission to the Special Care Unit 


10 NCAC 42D .2006 


Adopt 


Special Care Unit Resident Profile 


10 NCAC 42D .2007 


Adopt 


Special Care Unit Staffing 


10 NCAC 42D .2008 


Adopt 


Special Care Unit Staff Orientation 


10 NCAC 42D .2009 


Adopt 


Residents' Rights 


10 NCAC 42D .2010 


Adopt 


Other Applicable Rules for Special 


10 NCAC 42D .2011 


Adopt 


Care Units 






Definitions 


10 NCAC 42D .2201 


Adopt 


Persons Not Eligible for New Adult 


10 NCAC 42D .2202 


Adopt 


Care Home Lie. 






Aduh Care Homes 


10 NCAC 42D .2203 


Adopt 


Disclosure 


10 NCAC 42E. 1501 


Adopt 


The FacilityO-Special Care Services 


1 NCAC 42E. 1503 


Adopt 


Enrollment-Special Care Services 


1 NCAC 42E. 1504 


Adopt 


Individual Service Plans 


1 NCAC 42E. 1505 


Adopt 


Program Plan-Special Care Services 


10NCAC42E.1506 


Adopt 


Staff Orientation and Training 


10NCAC42E.1507 


Adopt 



14:19 



NORTH CAROLINA REGISTER 



April 3, 2000 



1774 



R ULES REVIEW COMMISSION 



Requirements for Special Care Services 

Unit 
The Facility-Special Care Services 
Enrollment-Special Care Services 
Individual Service Plans-Special Care 

Services 
Program Plan-Special Care Services 
Staff Orientation and Training 
Requirements for Special Care 

Services Unit 
Fiscal Management 
DHHS/DIVTSION OF MEDICAL ASSISTANCE 

Optional 
Income 
DEPARTMENT OF INSURANCE 

Y2K Interim Claim Payments 
JUSTICE/N C SHERIFFS' EDUCATION AND TRAINING STANDARDS 

Documentation of Educational Req. 
Fingerprint Records Check 
Terms and Conditions of a Limited 

Lecturer Cert 
DEPARTMENT OF LABOR 

Construction 
DENR/EIWIRONMENTAL MANAGEMENT COMMISSION 

Miscellaneous Volatile Organic 

Compound Emissions 
Applicability 

Compliance Schedules for Sources 
VOC Emissions from Transfer Operations 
Storage of Miscellaneous Volatile 

Organic Compound 
Interim Standards 
Miscellaneous Volatile Organic 

Compound 
Work Practices for Sources 
Purpose and Scope 
DENRAVILDLIFE RESOURCES COMMISSION 

Pennitted Archery Equipment 
Deer (White Tailed) 
Wild Turkey (Bearded Turkeys Only) 
Public Mountain Trout Waters 
Open Seasons: Creel and Size Limits 
Manner of Taking Nongame Fishes 
Taking Nongame Fishes for Bait 
Permitted Special Devices and Open 

Seasons 
Descriptive Boundaries 
General Regulations Regarding Use 
Hunting on Game Lands 
Fishing on Game Lands 
Alexander County 
Mecklenburg and Gaston Coimties 
McDowell County 



10NCAC42E.1508 


Adopt 


10NCAC42Z.1002 


Adopt 


10NCAC42Z.1003 


Adopt 


10NCAC42Z.1004 


Adopt 


10NCAC42Z.1005 


Adopt 


10NCAC42Z.1006 


Adopt 


10NCAC42Z.1007 


Adopt 


10NCAC43L.0401 


Amend 


10NCAC50B.0102 


Amend 


10NCAC50B.0313 


Amend 


11NCACI2.0327 


Adopt 


12NCAC10B.0302 


Amend 


12NCAC10B.0303 


Amend 


12NCAC10B.0909 


Amend 


13 NCAC 7F .0201 


Amend 


15NCAC2D.0518 


Repeal 


15 NCAC 2D .0902 


Amend 


15 NCAC 2D .0909 


Amend 


15 NCAC 2D .0948 


Amend 


15 NCAC 2D .0949 


Amend 


15 NCAC 2D .0950 


Repeal 


15 NCAC 2D .0951 


Amend 


15 NCAC 2D .0958 


Adopt 


15 NCAC 2D. 1201 


Amend 


15 NCAC lOB .01 16 


Amend 


15 NCAC lOB .0203 


Amend 


15 NCAC 1 OB .0209 


Amend 


15 NCAC IOC .0205 


Amend 


15 NCAC IOC .0305 


Amend 


15 NCAC IOC .0401 


Amend 


15 NCAC IOC .0402 


Amend 


15 NCAC IOC .0407 


Amend 


15NCACI0C.0503 


Amend 


15 NCAC lOD .0102 


Amend 


15 NCAC lOD .0103 


Amend 


15 NCAC lOD .0104 


Amend 


15 NCAC 1 OF .0332 


Amend 


15 NCAC 1 OF .0333 


Amend 


15 NCAC lOF .0339 


Amend 



7775 



NORTH CAROLINA REGISTER 



April 3, 2000 



14:19 



RULES REVIEW COMMISSION 



Mountain Island Lake 
Perquimans County 
REVENUE, DEPARTMENT OF 

Tax on Complimentary Packs 
Dealers on Trains 
Monthly Return Requirements 
Filing of Monthly Reports 
Medicines: Sales to Physicians 
Exporter's License 
SECRETARY OF STATE 



15NCAC 
15NCAC 

17NCAC 
17 NCAC 
17 NCAC 
17 NCAC 
17 NCAC 
17 NCAC 



How to Contact Elect. Commerce Section 

Applicable Definitions 

Public Key Technology Licensing 

Public Key Technology 

Certificate Policy General Provisions 

Identification and Authentication 

Operational Requirements 

Personnel Security Controls 

Technical Security Controls 

Certificate and Certificate Revocation 

Rule Administration 

Altemate Technologies and Provisional 
Licensing 

Civil Sanctions 

Criminal Penalties and Injunctive Relief 

Reciprocal Agreements 
TRANSPORTATION, DEPARTMENT OF/DIVISION OF fflGHWAYS 

Definitions for Outdoor Advertising 
Control 

Outdoor Advertising on Interstate and 
Federal High 
TRANSPORTATION, DEPARTMENT OF/DIVISION OF MOTOR VEHICLES 



18 NCAC 
18 NCAC 
18 NCAC 
18 NCAC 
18 NCAC 
18 NCAC 
18 NCAC 
18 NCAC 
18 NCAC 
18 NCAC 
18 NCAC 
18 NCAC 



18 NCAC 
18 NCAC 
18 NCAC 



lOF .0353 
1 OF .0355 

4C .0603 
4C.1101 
4C.1801 
4E .0201 
7B .1402 
9K .0201 

10.0101 
10.0201 
10.0301 
10.0302 
10.0303 
10.0304 
10.0305 
10 .0306 
10.0307 
10.0308 
10.0309 
10.0701 

10.0801 
10.0802 
10.0901 



19 NCAC 2E .0201 
19 NCAC 2E .0203 



Safety of Operation and Equipment 
STATE BOARDS/N C BOARD OF LAIVDSCAPE ARCHITECTS 

Authority: Name and Location of Board 2 1 NCAC 

Forms 21 NCAC 

Fees 21 NCAC 

Temporary Permit 21 NCAC 

STATE BOARDS/N C MEDICAL BOARD 

Continuing Medical Education Required 21 NCAC 

Approved Categories of CME 2 1 NCAC 

Exceptions 21 NCAC 

Reporting 21 NCAC 

STATE BOARDS/MIDWIFERY JOINT COMMITTEE 

Administrative Body and Definitions 21 NCAC 

Fees 21 NCAC 

Physician Supervision 21 NCAC 

Nurse Midwife Applicant Status 2 1 NCAC 

STATE BOARDS/N C BOARD OF REGISTRATION FOR PROFESSIONAL 

ENGINEERS AND LAND SURVEYORS 

Identification 21 NCAC 

Organization 21 NCAC 

Description of Seal 2 1 NCAC 

Records of Applications 21 NCAC 



19 NCAC 3D .0801 



26 .0101 
26.0104 
26.0105 
26 .0302 

32R.0101 
32R.0102 
32R.0103 
32R.0104 

33 .0101 
33 .0102 
33.0104 
33 .0106 



56.0101 
56.0103 
56.0104 
56 .0402 



Amend 
Amend 

Repeal 
Amend 
Amend 
Repeal 
Repeal 
Adopt 

Adopt 
Adopt 
Adopt 
Adopt 
Adopt 
Adopt 
Adopt 
Adopt 
Adopt 
Adopt 
Adopt 
Adopt 

Adopt 
Adopt 
Adopt 

Amend 

Amend 



Amend 

Amend 
Amend 
Amend 
Amend 

Adopt 
Adopt 
Adopt 
Adopt 

Amend 
Amend 
Amend 
Amend 



Amend 
Amend 
Amend 
Amend 



14:19 



NORTH CAROLINA REGISTER 



April 3, 2000 



1776 



RULES REVIEW COMMISSION 



Requirements for Licensing 


21 NCAC 56 .0501 


Amend 


Application Procedure: Individual 


21 NCAC 56 .0502 


Amend 


Examinations 


21 NCAC 56 .0503 


Amend 


Expirations and Renewals of Certificates 


21 NCAC 56 .0505 


Amend 


Requirements for Licensing 


21 NCAC 56 .0601 


Amend 


Application Procedure: Individual 


21 NCAC 56 .0602 


Amend 


Examinations 


21 NCAC 56 .0603 


Amend 


Expirations and Renewals of Certificates 


21 NCAC 56 .0606 


Amend 


Rules of Professional Conduct 


21 NCAC 56 .0701 


Amend 


Rules of Conduct of Advertising 


21 NCAC 56 .0702 


Amend 


Procedure 


21 NCAC 56 .0802 


Amend 


Annual Renewal 


21 NCAC 56 .0804 


Amend 


Offices 


21 NCAC 56 .0901 


Amend 


Titles of Business Entities 


21 NCAC 56 .0902 


Amend 


General 


21 NCAC 56. 1001 


Amend 


Seal 


21 NCAC 56. 1003 


Amend 


General 


21 NCAC 56. 1101 


Amend 


Design 


21 NCAC 56. 1102 


Amend 


Standard Certification Requirements 


21 NCAC 56. 1103 


Amend 


Certification with Temporary Permit 


21 NCAC 56. 1104 


Amend 


Firm Seal 


21 NCAC 56. 1105 


Amend 


Certification of Standard Design 


21 NCAC 56. 1106 


Amend 


Petitions 


21 NCAC 56. 1201 


Amend 


Hearings 


21 NCAC 56. 1203 


Amend 


Improper Practice by a Licensee 


21 NCAC 56. 1301 


Amend 


Unlawful Practice by Unlicensed Person 


21 NCAC 56. 1302 


Amend 


Conduct of Contested Case 


21 NCAC 56. 1409 


Amend 


General 


21 NCAC 56. 1501 


Amend 


General 


2 1 NCAC 56. 1601 


Amend 


Surveying Procedures 


21 NCAC 56. 1602 


Amend 


Classification of Boundary Surveys 


21 NCAC 56. 1603 


Amend 


Mapping Requirements 


21 NCAC 56. 1604 


Amend 


Classification of Topographic 


21 NCAC 56. 1605 


Amend 


Specifications for Topographic Surveys 


21 NCAC 56. 1606 


Amend 


Global Positioning System Surveys 


21 NCAC 56.1607 


Amend 


Classification/Land Information System 


21 NCAC 56.1608 


Amend 


Minimum Photogrammetric Production 


21 NCAC 56.1609 


Amend 


Standards 






Introduction 


21 NCAC 56. 1701 


Amend 


Definitions 


21 NCAC 56. 1702 


Amend 


Requirements 


21 NCAC 56 .1703 


Amend 


Units 


21 NCAC 56. 1704 


Amend 


Determination of Credit 


21 NCAC 56. 1705 


Amend 


Recordkeeping 


21 NCAC 56. 1706 


Amend 


Exemptions 


21 NCAC 56. 1707 


Amend 


Reinstatement 


21 NCAC 56. 1708 


Amend 


Comity-Out-of-Jurisdiction Resident 


21 NCAC 56. 1709 


Amend 


STATE BOARDS/N C SOCIAL WORK CERTIHCATION AND LICENSURE BOARD 




Purpose 


21 NCAC 63 .0101 


Amend 


Definitions 


21 NCAC 63 .0102 


Amend 


Prohibitions 


21 NCAC 63 .0103 


Repeal 


Organization of the Board 


21 NCAC 63 .0104 


Amend 


Meetings 


21 NCAC 63 .0105 


Amend 



7777 



NORTH CAROLINA REGISTER 



April 3, 2000 



14:19 



RULES REVIEW COMMISSION 



Definitions 


21 NCAC 63 .0201 


Repeal 


Application Process 


21NCAC63.0202 


Amend 


References 


21 NCAC 63 .0204 


Amend 


Academic Qualifications 


21 NCAC 63 .0205 


Repeal 


Academic Exemptions 


21 NCAC 63 .0206 


Repeal 


Comity 


21 NCAC 63 .0207 


Repeal 


Application Fee 


21 NCAC 63 .0208 


Amend 


Eligibility 


21 NCAC 63 .0209 


Amend 


Work Experience 


21 NCAC 63 .0210 


Adopt 


Provisional Licenses 


21 NCAC 63 .0210 


Amend 


Ehiplicate License or Certificates 


21 NCAC 63 .0212 


Adopt 


Temporary Licenses 


21 NCAC 63 .0213 


Adopt 


Qualifying Examinations 


21 NCAC 63 .0301 


Amend 


Reporting of Scores 


21 NCAC 63 .0302 


Amend 


Retaking of Examination 


21 NCAC 63 .0303 


Amend 


Cancellation 


21 NCAC 63 .0304 


Amend 


Review of Examinations 


21 NCAC 63 .0305 


Amend 


Examination Fees 


21 NCAC 63 .0306 


Amend 


Continuing Education Requirements 


21 NCAC 63 .0401 


Amend 


Forms 


21 NCAC 63 .0402 


Repeal 


Renewal Fees 


21 NCAC 63 .0403 


Amend 


Reinstatement 


21 NCAC 63 .0404 


Adopt 


Purpose and Scope 


21 NCAC 63 .0501 


Amend 


General Professional Responsibilities 


21 NCAC 63 .0503 


Amend 


Responsibilities in Professional 


21 NCAC 63 .0504 


Amend 


Relationships 






Remuneration 


21 NCAC 63 .0506 


Amend 


Confidentiality and Record Keeping 


21 NCAC 63 .0507 


Amend 


Pursuit of Research 


21 NCAC 63 .0508 


Amend 


Public Statements 


21 NCAC 63 .0509 


Amend 


Grounds for Disciplinary Procedures 


21 NCAC 63 .0601 


Amend 


Investigation 


21 NCAC 63 .0602 


Amend 


Notice of Charges and Hearings 


21 NCAC 63 .0603 


Amend 


Location of Hearing 


21 NCAC 63 .0604 


Repeal 


Conduct of Hearing 


21 NCAC 63 .0607 


Amend 


Reporting of Disciplinary Actions 


21 NCAC 63 .0609 


Adopt 


Petitions for Adoption of Rules 


21 NCAC 63 .0701 


Amend 


Procedure for Adoption of Rules 


21 NCAC 63 .0702 


Amend 


Temporary Rules 


21 NCAC 63 .0703 


Amend 


Declaratory Rulings 


21 NCAC 63 .0704 


Amend 


Reporting Complaints 


21 NCAC 63 .0801 


Repeal 


Confidentiality 


21 NCAC 63 .0802 


Repeal 


Investigation 


21 NCAC 63 .0803 


Repeal 


Notice of Hearing and Charges 


21 NCAC 63 .0804 


Repeal 


Informal Conference 


21 NCAC 63 .0805 


Repeal 


Hearings 


21 NCAC 63 .0806 


Repeal 


Decision of the Board 


21 NCAC 63 .0807 


Repeal 


Summary Suspension 


21 NCAC 63 .0808 


Repeal 


The Public Record 


21 NCAC 63 .0809 


Repeal 


Disciplinary Actions 


21 NCAC 63 .0820 


Repeal 


STATE BOARDS/N C SUBSTANCE ABUSE PROFESSIONAL CERTinCATION BOARD 




Certification as Substance Abuse 


21 NCAC 68 .0203 


Amend 


Counselor Intern 






Certified Substance Abuse Counselor 


21 NCAC 68 .0205 


Amend 



14:19 



NORTH CAROLINA REGISTER 



April 3, 2000 



1778 



RULES REVIEW COMMISSION 



Process for Prevention Consultant 


21NCAC68.0206 


Amend 


Certification 






Continuing Education Required for 


21 NCAC 68 .0208 


Amend 


Counselor 






Reciprocity 


21NCAC68.0209 


Amend 


Process for Clinical Supervisor 


21 NCAC 68 .0211 


Amend 


Certification 






Process for Residential Facility Director 


21 NCAC 68 .0212 


Amend 


Continuing Education Approval Policy 


21 NCAC 68 .0213 


Amend 


Competence 


21 NCAC 68 .0503 


Amend 


Hearing Before Board 


21 NCAC 68 .0701 


Amend 


N C STATE BOARD OF COMMUNITY COLLEGES 






Reporting of Student Hours 


23 NCAC 2D .0323 


Amend 


Reporting of Student Hours 


23 NCAC 2D .0324 


Amend 


OmCE OF ADMIMSTRATIVE HEARINGS 






Cost for Copies 


26 NCAC 1.0 103 


Amend 


General Format Instructions 


26NCAC2C.0108 


Amend 



RULES REVIEW COMMISSION 

March 16, 2000 
MINUTES 

The Rules Review Commission met on March 1 6, 2000, in the Assembly Room of the Methodist Building, 1 307 Glenwood Avenue, Raleigh, 
North Carolina. Commissioners in attendance were Chairman Theresa Smallwood, Palmer Sugg, Jennie J. Hayman, John Arrowood, Paul 
Powell, Laura Devan, Jim R. Funderburk, David R. Twiddy, and George Robinson. 

Staff members present were: Joseph J. DeLuca, Staff Director; Bobby Bryjin, Rules Review Specialist; and Sandy Webster. 

The following people attended: 



Shamese Ransome 
Mike Mangum 
Laurie Fuller 
Walter James 
Robert A. Potter 
Judy Bullock 
Dedra Alston 
Tom West 
Thomas Allen 
EUie Sprenkel 
Emily Lee 
Lisa Tolsen 
Mary Ann Stone 
William K. Hale 
David Clawson 
Wayne Mobley 
Bill Hopper 
Roger Bone 
Jeff Manning 
Howard Kramer 
Jean Stanley 



DHHS/SSC 

COMMERCE/ITS 

Attomey General 

Insurance 

Insurance 

Attomey General 

DENR 

Poyner and Spmill 

DENR/DAQ 

Insurance 

Transportation 

DENR/DWM 

DHHS/CHS 

Insurance 

DENR/DEH 

DENR/DEH 

NCLTCA 

NCLTCA 

DENR/DWQ 

N C Board of Nursing 

N C Board of Nursing 



1779 



NORTH CAROLINA REGISTER 



April 3, 2000 



14:19 



RULES REVIEW COMMISSION 



Lynette Dean- Johnson Labor 

Angela Waldorf Labor 

Jack Nichols N C Nursing Home Administrators 

E. Ann Christian N C Substance Abuse Professional Certification Board 

APPROVAL OF MINUTES 

The meeting was called to order at 1 0:00 a.m. with Chairman Smallwood presiding. The Commission immediately went into a closed session 
to discuss with their attomeys the progress of the lawsuit by the Pharmacy Board against the Rules Review Commission and threatened 
litigation by the Department of Labor. It resumed its public session at 10:20 a.m. The Chairman asked for any discussion, comments, or 
corrections concerning the minutes of the February 17, 2000 meeting. There being none, the minutes were approved. 

FOLLOW-UP MATTERS 

4 NC AC 1 1 .0202 and .070 1 : COMMERCE/Commerce Finance Center - The rewritten rule for .0202 was approved by the Commission. 
The Commission approved the repeal of .0701 . 

13 NCAC 7F .0601, .0602, .0603, .0604, .0605, and .0606: DEPARTMENT OF LABOR - The Commission voted to take no action on 
these rules. 

15A NCAC 2B .021 1, .0220, .0223, and .0225: DENR/Environmental Management Commission - The rewritten rules submitted by the 
agency were approved by the Commission. Commissioner Sugg voted not to approve these rules. 

1 5A NCAC 7M .0403 : DENR/Coastal Resources Commission - No action was necessary on this rule. The Coastal Resources Commission 
meets next week and expects to respond at the April meeting. 

1 5 A NCAC 1 8D .0203 and .0403 : DENRAVater Treatment Facility Operators Certification Board - The Commission approved the rewritten 
rules submitted by the agency. 

17 NCAC 4B .0302: DEPARTMENT OF REVENUE - The Commission approved the rewritten rule submitted by the agency. 

21 NCAC 12 .0202, .0209, .0402, .0405, .0410, and .0907: N C Licensing Board for General Contractors - No response was received on 
these rules. 

21 NCAC 58A .0406: N C REAL ESTATE COMMISSION - Commissioner Sugg recused himself fi-om this rule. The rewritten rule 
submitted by the agency was approved by the Commission. 

LOG OF FILINGS 

Chairman Smallwood presided over the review of the log and all rules were approved with the following exceptions: 

10 NCAC 42A .0801 - .0810: DHHS/Social Services Commission - These rules were sent to the Office of State Budget and Management 
for a fiscal determination of substantial economic impact upon the request of a private party. TTie Commission was hampered in its 
discussion of this case by the fact that the OSBM agency representative was in attendance at the APO committee meeting rather than the RRC 
meeting. The RRC determined that it had no choice under the circumstances. 

10 NCAC 43E .1501 : DHHS/Social Services Commission - This rule was withdrawn by the agency. 

15A NCAC 21F .1203: DHHS/Commission for Health Services - The Commission objected to this rule due to ambiguity. In (a), it is not 
clear what would constitute "reasonable" efforts. 

15A NCAC 21 F .1204: DHHS/Commission for Health Services - The Commission objected to this rule due to ambiguity. In (a), it is not 
clear what constitutes "reasonable" efforts. In (c), there is no authority to require compliance with a statewide plan that has not been adopted 
as a rule. 



14:19 NORTH CAROLINA REGISTER April 3, 2000 1780 



R ULES REVIEW COMMISSION 



1 9A NCAC 3G .0205 : TRANSPORT ATION/Division of Motor Vehicles - The Commission objected to this rule due to lack of statutory 
authority. There is no authority for the provision in (2)(A) allowing someone within, or employed by, or responsible to, DMV to set the 
"physical standards" to be met by school bus drivers unless these standards are adopted as rules. 

21 NCAC21 .0501: NCBoardforLicensingofGeologists-TheCommissionobjectedtothisruIeduetolackof statutory authority. There 
is no authority cited to suspend or revoke the license of a geologist simply based upon a charge of what amounts to a rule or statutory 
violation that would allow suspension or revocation if the Board finally determined the charge was true. G.S. 1 50B-3(b) in fact requires a 
notice to the licensee before even beginning any such proceedings. Note that 1 50B-3(c) does allow summary suspension of a license in an 
emergency situation. 

21 NCAC 21 .1101 : N C Board for Licensing of Geologists - The Commission objected to this rule due to ambiguity. In (d)(4) it is unclear 
what is meant by "indiscriminately" and "proper authority." 

21 NCAC 37D .0403: N C State Board of Nursing Home Administrators - The Commission objected to this rule due to ambiguity. It is 
unclear in (b) that the "acceptable standards" are those negotiated out beforehand by the AIT, preceptor, and board or what other methods 
for determining "acceptable standards" are. 

21 NCAC 50 .0304: N C State Board of Examiners of Plumbing, Heating, and Fire Sprinkler Contractors - The Commission objected to 
this rule due to lack of statutory authority. There is no authority to set an exam fee outside rulemaking as set out in (a), "... in an amount 
determined by the Board." 

21 NCAC 50 .0402: N C State Board of Examiners of Plumbing, Heating, and Fire Sprinkler Contractors - The Commission objected to 
this rule due to lack of statutory authority and ambiguity. It is unclear what is meant or required by the last sentence in (a). There is no 
authority cited for this Board to require Code Enforcement officials to either coordinate anything or cooperate with anyone. 

21 NCAC 50 .1 101: N C State Board of Examiners of Plumbing, Heating, and Fire Sprinkler Contractors - The Commission objected to 
this rule due to lack of statutory authority. There is no authority cited to charge the fees set out in this rule. 

2 1 NCAC 68 .0507: N C Substance Abuse Professional Certification Board - The Commission objected to this rule due to ambiguity. Item 
#3 appears to conflict with item #4. The Commission reads the rule as requiring the Substance Abuse Professional to terminate a 
professional relationship when he or she knows (or should know) that the client is not benefiting from it. Item 4 is worded differently. But 
if a client is refusing "treatment, referral, or recommendations" it is unlikely that the client is benefiting from the relationship. Yet here the 
professional is to "weigh.. .the benefits of continued treatment... and act in the best interest of the client." So it seems that even if the client 
is not benefiting, the professional, instead of terminating the relationship, as required by (3), could continue it "in the best interest of the 
client." 

COMMISSION PROCEDURES AND OTHER MATTERS 

Mr. DeLuca reported that he had attended a Joint Administrative Procedures Oversight Committee meeting and informed them of the status 
of the Pharmacy Board case and the perceived status of the Labor rules. 

The next meeting will be on Thursday, April 13, 2000. 

The meeting adjourned at 12:35 p.m. 

RespectfiiUy submitted, 
Sandy Webster 



1781 NORTH CAROLINA REGISTER April 3, 2000 14:19 



CONTESTED CASE DECISIONS 



1 his Section contains thefiill text of some of the more significant Administrative Law Judge decisions along with an index to all 
recent contested cases decisions which are filed under North Carolina 's Administrative Procedure Act Copies of the decisions listed 
in the index and not published are available upon request for a minimal charge by contacting the Office of Administrative Hearings, 
(919) 733-2698. Also, the Contested Case Decisions are available on the Internet at the following address: 
http:/Avww.state.nc.us/OAH/hearings/decision/caseindex.htm. 



OFFICE OF ADMINISTRATIVE HEARINGS 

Chief Administrative Law Judge 

JULIAN MANN, III 

Senior Administrative Law Judge 
FRED G. MORRISON JR. 

ADMINISTRA TIVE LA W JUDGES 



Sammie Chess Jr. 
Beecher R. Gray 
Melissa Owens Lassiter 



Meg Scott Phipps 

Robert Roosevelt Reilly Jr. 
Beryl E. Wade 



AGENCY 



CASE 
NUMBER 



ALJ 



DATE OF 
DECISION 



PUBLISHED DECISION 
REGISTER CITATION 



ADMINISTRATION 

Britthaven, Inc. v. Department of Administration98 IX)A 081 1 

and 
Priva-Trends, Inc. 
Laidlaw Transit Svcs, Inc. v. Katie G. Dorsett, Secy/Dept/ Administration 

OFFICE OF ADMINISTRATTVE HEARINGS 

Ted Murrell, Zam, Inc. v. Office of Administrative Hearings 
Samuel Lee Ferguson v. Office of Administrative Hearings 

AGRICULTURE 

Archie McLean v. Department of Agriculture 

ALCOHOLIC BEVERAGE CONTROL COMMISSION 

Alcoholic Beverage Control Coinmission v. Keyland, Inc., T/A Cloud 9 
Alcohohc Beverage Control Commission v. Food Lion, Inc., Store #1351 
Alcoholic Beverage Control Commission v. Stop 1, Inc, T/A Stop 1 Grocery 
Alcoholic Beverage Control Commission v, George Steven Everett 

t/a Casino Snooks Place 
Alcohohc Beverage Control Commission v. Beech Mountain Resort, Inc. 
Alcoholic Bev. Control Comm.v. Partnership T/A Mermaid Rest. & Lge. 
Alcoholic Beverage Control Commission v. Jaeson Nyung Kim 
Alcoholic Beverage Control Commission v. Lillian Sarah Clary 
Alcohohc Beverage Control Commission v. Circle K Stores, Inc., T/A 

Circle K #8620 
Alcoholic Beverage Control Commission v. Circle K Stores, Inc., T/A 

Circle K #8357 
Alcoholic Beverage Control Commission v. Vnus Enterprices, LLC, 

t/a Rendez Vous Club & City of Charlotte 
Alcoholic Beverage Control Commission v. Mohammad Salim Pirani 
Alcoholic Beverage Control Commission v. Creek Lounge, Inc. t/a 

Creek Lounge 

Delores Ann HoUey v. Alcoholic Beverage Control Commission 
Alcohohc Beverage Control Commission v. Partnership T/A 

Corrothers Community Center/Private Club 
Verdict Ridge Country Club, by H. Edward Knox v. Alcohohc 



06/10/99 



99DOA0102 


Morrison 


99 OAK 0665 


Chess 


99OAH0718 


Chess 


98 DAG 1770 


Reilly 


98 ABC 1099 


Overby 


98 ABC 1270 


Gray 


98 ABC 1337 


Phipps 


98 ABC 1546 


ReiUy 


99 ABC 0287 


Reilly 


99 ABC 0367 


Chess 


99 ABC 0407 


Morrison 


99 ABC 0615 


Phipps 


99 ABC 0651 


Chess 


99 ABC 0656 


Gray 


99 ABC 0684 


Morgan 


99 ABC 0780 


Morrison 


99 ABC 0820 


Morgan 


99 ABC 0876 


Gray 


99 ABC 0986 


Lassiter 


99 ABC 1637 


Morrison 



06/1 1/99 



07/14/99 
07/16/99 



07/12/99 



01/17/99 
03/31/99 
09/29/99 
10/19/99 

08/11/99 
09/17/99 
07/09/99 
09/01/99 
12/30/99 

11/29/99 

10/15/99 

09/21/99 
10/13/99 

08/10/99 
11/03/99 

01/07/00 



14:02 NCR 115 



14:04 NCR 349 



14:04 NCR 347 



14:16 NCR 1489 



14:19 



NORTH CAROLINA REGISTER 



April 3, 2000 



1782 



CONTESTED CASE DECISIONS 



AGENCY 



CASE 
NUMBER 



ALJ 



DATE OF 
DECISION 



PUBLISHED DECISION 
REGISTER CITATION 



Beverage Control Commission 

AUCTIONEER LICENSLNG BOARD 

Larry C. Oiler v. North Carolina Auctioneer Licensing Board 
George W. Phillips, n v N.C. Auctioneer Licensing Board 

BOARD OF MORTUARY SCIENCE 

N.C. Board of Mortuary Science v. Kennedy Funeral Home 

CRIME CONTROL AND PUBLIC SAFETY 

Ray Anthony Breeding v. Crime Control & Public Safety 
John Ray Webb v. Crime Victims Compensation Commission 
Sarene Franklin HoUoway v. Crime Victims Compensation Comm. 
Vemel Capel Harris v. Crime Victims Compensation Commission 
Paul Richard Mull v. Crime Victims Compensation Commission 
Coradene Mayhand v. Crime Victims Compensation Commission 
Edna Carr v. Crime Victims Compensation Commission 
Eric Charles Williams v. Crime Control & Public Safety, Div. of 

State Highway Patrol 
Bobby Mills v. Crime Victims Compensation Commission 
William Samuel McCraw v. Crime Victims Compensation Commission 
Anson D. Looney v. Crime Victims Compensation Commission 
Elvin Williams, Jr. v. Crime Victims Compensation Commission 
Michael Anthony Powell v. Crime Victims Compensation Commission 
Mary Elizabeth Peoples Hogan v. Crime Victims Compensation Comm. 
Louise Dowd v. Crime Victims Compensation Commission 
Lemuel Ray Jenkins v. Crime Victims Compensation Commission 
Aimabell B. McCormick v. Crime Victims Compensation Commission 
Christopher Beasley v. Crime Victims Compensation Commission 
Johnola E. McAlhster v. NC Victim and Justice Services 
Quantisha Pratt v. NC Crime Victims Compensation Commission 
Nancy Davis Cave v. N.C. Victim and Justice Services 
Oscar Reynolds v N.C. Crime Victims Compensation Commission 
James E. Taylor v N.C. Crime Victims Compensation Commission 

ENVIRONMENT AND NATURAL RESOURCES 

Richard D. Poling, Parent of Taylor B. Poling, A Minor v. NC Dept. 

of Environment, Health & Natural Resources 
The Appletree Companies, Inc., Successor to Stewart Products, Inc. 

and Utts Services, Ltd. v. Dept. of Environment & Natural Resources 
Ronald Lee Hudson, Jr. v. Craven Health Department 
R.J. Reynolds Tobacco Co. v. Dept. of Environment & Natural Resources 
T. Famell Shingleton v. Environment and Natural Resources 
T. Famell Shingleton v. Environment and Natural Resources 
Town of Maysville v. Environment and Natural Resources 
Wilhe Setzer v. Department of Environment & Natural Resources 
Charles H. Jordan v. Bnmswick Coimty Health Department 
Jerry Franks and John Schifano, et. al. v. Environment & Natural Resources 

and Wake County Board of Commissioners 
McDowell Development, Allen Gurley - VP (LQS 98-087) v Environment 

and Natural Resources 
Jerry Franks and John Schifano, et. al. v. Environment & Natural Resources 

and Wake County Board of Commissioners 
James P. and Irene P. Wilson v. Cleveland Co. Health & Sanitary 
Deep River Citizens' Coalition, American Canoe Assoc, Inc., and Deep 

River Coalition, Inc. v. Department of Env. & Natural Resources 
Deep River Citizens' Coalition, American Canoe Assoc, Inc., and Deep 

River Coalition, Inc. v. City of Greensboro, Piedmont Triad Regional 

Water Authonty 
Mazzella's Restaurant, Peter D. Mazzella v. Carteret County Env. Health 
Roadway Express v. Department of Environment and Natural Resources 
John W. Venable v. Department of Enviromnent and Natural Resources 
Shell Island Homeowners' Association v. DENR, Div. of Env. Health 
Gail S. Barfield v. Department of Environment and Natural Resources 
Richard E. Day v. Division of Coastal Management 
Ronald L. Walker, Sr., v. Environmental Health Ala County 
CliflFord Myers v. Montgomery County Health Department 



99CFA1011 


Mann 


01/27/00 




99CFAI336 


Lassiter 


02/15/00 




99 BMS 0894 


Chess 


01/20/00 




93 CPS 0695 


Gray 


09/13/99 




95CPS1353 


Gray 


09/13/99 




97 CPS 1172 


Chess 


10/12/99 




98 CPS 0328 


Chess 


01/31/00 




98 CPS 0342 


Chess 


07/26/99 




98 CPS 0398 


Chess 


10/09/99 




98 CPS 0788 


Chess 


10/28/99 




98 CPS 1279 


Chess 


11/01/99 




98 CPS 1412 


Wade 


08/06/99 




98 CPS 1626 


Morrison 


06/09/99 




99 CPS 0096 


Morrison 


05/25/99 




99 CPS 01 18 


Owens 


08/03/99 




99 CPS 0426 


ReiUy 


08/03/99 




99 CPS 0504 


ReiUy 


07/29/99 




99 CPS 0519 


Morrison 


12/07/99 




99 CPS 0521 


Gray 


09/08/99 




99 CPS 0564 


Phipps 


08/04/99 




99 CPS 0843 


Chess 


11/23/99 




99 CPS 1060 


Gray 


12/29/99 




99 CPS 1093 


Mann 


03/03/00 




99 CPS 1154 


Mann 


01/20/00 




99 CPS 1453 


Mann 


02/23/00 




99 CPS 1473 


Lassiter 


02/07/00 




97EHR0277 


Mann 


02/25/00 




97EHR0795 


Lassiter 


11/19/99 




97EHR1166 


Mann 


03/01/00 




98EHR1315 


Wade 


06/04/99 


14:02 NCR 110 


98EHRI600 


ReiUy 


10/08/99 


14:11 NCR 926 


98EHR1601 


Reilly 


10/08/99 




99 EHR 0069 


Owens 


09/27/99 




99EHR0166 


Chess 


06/28/99 




99 EHR 0201 


Morrison 


06/28/99 




99 EHR 0344' 


Phipps 


09/28/99 




99 EHR 0358 


Mann 


01/24/00 


14:18 NCR 1656 


99 EHR 0380' 


Phipps 


09/28/99 




99 EHR 0506 


Lassiter 


10/07/99 




99 EHR 0560" 


ReiUy 


11/01/99 




99 EHR 0613" 


ReiUy 


11/01/99 




99 EHR 0692 


ReiUy 


08/19/99 




99 EHR 0745 


Morrison 


07/27/99 




99 EHR 0773 


Wade 


10/13/99 




99 EHR 0814 


Owens " 


08/18/99 




99 EHR 0840 


Morrison 


11/19/99 




99 EHR 0921 


Wade 


1 1/02/99 




99 EHR 1076 


Morrison 


10/18/99 




99 EHR 1106 


Mann 


11/03/99 





1783 



NORTH CAROLINA REGISTER 



April 3, 2000 



14:19 



CONTESTED CASE DECISIONS 



AGENCY 

Deloris B. Wooten v. Pitt County Dept. of Environmental Health 
Marissa D. McCain v. Department of Environment and Natural Resources 
Town of Wallace v. Department of Environment and Nattiral Resources 
William Todd Allison v Department of Environment and Natural 
Resources, Division of Coastal Management 



CASE 




DATE OF 


PUBLISHED DECISION 


NUMBER 


ALJ 


DECISION 


REGISTER CITATION 


99EHR1131 


Wade 


11/19/99 




99 EHR 1245 


Lassiter 


01/04/00 




99EHR1194 


Chess 


12/06/99 




99 EHR 1612 


Chess 


01/10/00 





Division of Air Quality 

Neighbors Against The Cullasaja Asphalt Plant & Blue Ridge Env. 
Defense League, Inc. v. Dept of Env & Natural Resources and Rhodes 
Brothers Paving, Inc. and Carolina Asphalt Pavement Association 

Neighbors Against The Cullasaja Asphalt Plant & Blue Ridge Env. 
Defense League, Inc. v. Dept of Env & Nattu^l Resources and Rhodes 
Brothers Paving, Inc. and Carolina Asphalt Pavement Association 

Tenance W. Bache, Pres., Terhane Group, Inc. v. DENR, Div/Air Quality 

Foothills Action Comm. For The Environment and The Blue Ridge 
Environmental Defense League, Inc. v. DENR, Div. of Air Quality & 
D&S Asphalt Materials and Carolina Asphalt Pavement Assoc. 

XVm Airborne Corps & Fort Bragg, Dept. of the Army, USA v. 
Environment and Natural Resources, Div. of Air Quality 

J.D. Owen v. Environment and Natural Resources, Div. of Air Quality 

Carohna Land Clearing Corp./Ron Olson v. DENR, Division of 
AirQuahty 



98 EHR 1735 Gray 



98 EHR 1735" Gray 



98 EHR 1790 Mann 

99 EHR 0157'^ Gray 



99 EHR 0283 Wade 



99 EHR 0642 Mann 

99 EHR 1105 Chess 



09/30/99 



12/06/99 



06/23/99 
12/06/99 



08/11/99 



08/10/99 
02/22/00 



14:10 NCR 900 



Environmental Management 

Allen Raynor v. Environmental Management Conmiission 

Division of Land Resources 

Buel B. Barker, Jr. and Hubbard Realty of Winston-Salem, a NC Corp., 

jointly and severally v. DE>fR, Div. of Land Resources 
T.B. Powell, Inc. v. DENR, Division of Land Resources 
David B. McMillan v. DENR Division of Land Resources 
Ronald G. Smith v. DENR, Division of Land Resources 



99 EHR 0127 


Gray 


07/27/99 


98 EHR 1457 


Morrison 


06/09/99 


99 EHR 0632 


Wade 


10/04/99 


99 EHR 0717 


ReiUy 


03/02/00 


99 EHR 0799 


Morrison 


10/29/99 



Division of Marine Fisheries 

Alton Chadwick v. Division of Marine Fisheries 99 EHR 0553 



ReiUy 



08/19/99 



Division of Water Quality 

York Oil Company v. DENR, Division of Water Quahty 

J. Todd Yates and Teresa B. Yates v. DENR Div. of Water Quahty 

N.G. Purvis Farms, Inc. v. DENR, Division of Water Quality 

Dallas Harris Real Estate Construction, Inc., v Dept. of Environment 

and Natural Resources, Division of Water Quality 
Anson County Citizens Against Chemical Toxins in Underground Storage, 

Blue Ridge Environmental Defense League, Inc., Juha Cadle, T.C. 

Wright, Mae Wright, Claretha Maske, Vernon Maske, Mark Maske, 

Emma Smith and Bobby Smith v. DENR Div. of Water Quahty and 

Chambers Development of North Carolina 



97 EHR 1026 


Phipps 


07/26/99 


14:04 NCR 343 


98 EHR 1456 


Wade 


06/22/99 




99 EHR 0696 


Chess 


08/27/99 




99 EHR 0770 


Lassiter 


01/31/00 


14:17 NCR 1586 


99 EHR 1469 


Chess 


02/16/00 





Soil and Water Conservation Commission 

Neuse River Foimdation, Neuse Riverkeeper, and Alliance For A 
Responsible Swine Industry, Inc. v. NC Soil & Water 
Conservation Commission 



99 EHR 1660 



Morrison 



12/10/99 



14:14 NCR 1334 



BOARD OF GEOLOGISTS 

Andrew M. Raring, Ph.D v. Board for the Licensing of Geologists 

HEALTH AjND HUMAN SERVICES 

Eardley "JR" Stephens v. St. Bd. of Nurse's Aides and Practitioners 

Ernest Clyde Absher and Dianna B. Absher v. Health & Human Resources 

Vickie Jean Epps v Department of Health & Human Services 

Andrew Gainey v. Office of the Chief Medical Examiner 

J.P. Lynch v. Department of Health & Human Services 

Paul Walker, Thomas Walker & Mary Walker v, Mecklenburg Area 

Mental Health 
New Hope Living Centers, Eric D. Lewis v. Health & Human Services 
Frank McKoy v. Department of Health & Human Services 
Joan Marie McDaniel v. Department of Health & Human Services 



99 BOG 0150 


Mann 


98DHR0155 


Phipps 


98DHR1622 


ReiUy 


98DHR1725 


Gray 


98DHR1761 


Owens 


99DHR0111 


Reilly 


99DHR0155 


Morrison 


99DHR0170 


Owens 


99 DHR 0226 


Wade 


99 DHR 0305 


Reilly 



06/16/99 



08/25/99 
06/17/99 
02/03/00 
05/12/99 
05/25/99 
08/19/99 

05/25/99 
07/06/99 
08/05/99 



14:01 NCR 69 



14:19 



NORTH CAROLINA REGISTER 



April 3, 2000 



1784 



CONTESTED CASE DECISIONS 



AGENCY 

Lonnie Herring v. Department of Health & Human Services 
Robert H. Riley v. Office of the Governor, Office of Citizen Services 
Paula Watts v. Department of Health & Human Services 
Betty C. Patterson v. Department of Health & Human Services 
Rayner Super Mkt., J.K. Rayner, Jr. v. Department of Health and 

Human Services 
Monica Denise Dayson v. Department of Health & Human Services 
Andrea Lightfood v. Department of Health & Human Services 
MeUnda Faye Heard v. CNC Services, A Htmian Service Agency 
Cynthia A. Murray v. Department of Health & Hiunan Services 

Division of Child Development 

Shaw Speaks Child Dev. Ctr. v. Health & Human Svcs., Child Dev. 
Lachelle L. Pareons v. Health & Human Svcs, Div. of Child Dev. 
In The Beginning, Inc. v. Health & Human Svcs., Div. of Child Dev. 
Barringer Center for Child Development, Elon Home for Children, 

Inc., Rev. Dr. Frederick G. Grosse v. Health & Human Services, 

Div. of Child Development 
Dulatown Outreach Center, Inc. v. Health & Human Svcs., Child Dev. 
Michele Denoff v. Health & Human Services, Div. of Child Dev. 
MLCM, Inc., Mary C. McGovem v. DHHS, Div. of Child Dev. 
Small World Daycare n, Trena S. McDaniel v. Health & Human Svcs., 
Div. of Child Dev. 



CASE 




DATE OF 


PUBLISHED DECISION 


NUMBER 


ALJ 


DECISION 


REGISTER CITATION 


99 DHR 0350 


Reilly 


06/03/99 




99DHR0356 


Wade 


07/21/99 




99 DHR 0912 


ReiUy 


03/07/00 




99 DHR 0954 


ReiUy 


11/05/99 




99 DHR 0961 


Morrison 


11/15/99 




99 DHR 1041 


Reilly 


09/29/99 




99 DHR 1094 


Wade 


02/09/00 




99 DHR 1307 


Chess 


03/06/00 




99 DHR 1335 


Mann 


01/31/00 




99 DHR 0042 


Gray 


07/22/99 




99 DHR 0445 


Reilly 


07/19/99 




99 DHR 0575 


Mann 


07/19/99 




99 DHR 0621 


Gray 


12/15/99 




99 DHR 0688 


Owens 


07/21/99 




99 DHR 0695 


Owens 


08/05/99 




99 DHR 1032 


Wade 


11/19/99 




99 DHR 1038 


Lassiter 


10/06/99 





Division of Facility Services 

Kelly M. Poole v. Health & Human Services, Div. of FacUity Services 
Norma Faye Lewis v. Health & Human Svcs., Div. of Facihty Services 
Delia C. Jones v. Health & Human Services, Div. of Facihty Services 
Heather Alane Scott v. Health & Human Svcs. Div of Facihty Services 
EfEe Ruth Smith v. Health & Human Svcs., Div. of Facihty Services 
Vivienne Geloria Marshall v. DHHS, Div. of Facility Services 
Sarah L. Mathis v. DHHS, Div. of Facility Services 
Doris Laviner Moser v. Health & Human Services, Div. of Facihty Svcs. 
Norma Faye Lewis v. Health & Human Svcs., Div. of Facility Services 
Carolyn Grant v. Health & Human Services, Div. of Facihty Services 
Marion Moser Thompson v. Health & Human Svcs., Facility Services 
Rose Marie Hadley v. Health & Human Svcs., Div. of Facihty Services 
Sarah Frances Alford v. Health & Human Svcs., Div. of Facihty Svcs. 
Alvin L. Phynon Jr. v. Health & Human Svcs., Dept. of Facility 
Cabarrus Memorial Hospital d/b/a Northeast Medical Center 

v. DHHS, Div. of Facility Services, Certificate of Need Section & 

Cabarrus Diagnostic Imaging, Inc. 
Cabarrus Diagnostic Imaging, Inc. v. DHHS, Div. of Facihty Services, 

Certificate of Need Section & Cabarrus Memorial Hospital, d/b/a 

Northeast Medical Center 
Barbara Rhue v. D.F.S. 
Barbara Rhue v. D.F.S. 

Michelle Johnson v. DHHS, Division of Facihty Services 
Donna L. Holland v. DHHS, Division of Facility Services 
Esther Nieves v. Health & Human Services, Div. of Facihty Services 
Shirley Ann Beck v. Division of Facility Services 
Scott Cole V. DHHS, Division of Facility Services 
Mary Grace Arrowood v. DHHS, Division of Facility Services 

Division of Medical Assistance 

Interim HealthCare - Morris Group, Inc., Lisa B. Morris, RN, BSN v. 

DHHS, Division of Medical Assistance 
Companion Health Care, Inc. v. Div. of Medical Assistance, DHR 



Division of Mental Health, Developmental Disabilities and Substance Abuse Services 

S.S. by her parents and next friends, D.S. & A.S. v. DMH/DD/SAS 
Theresa Mabry in behalf of Aaron Mabry, a minor child v. DHHS, 
Div. of MH/DD/SAS, Willie M. Section 



97 DHR 0629 


Chess 


06/14/99 


98 DHR 1274'' 


Phipps 


07/02/99 


98 DHR 1680 


Gray 


06/09/99 


98 DHR 1671 


Gray 


10/08/99 


98 DHR 1774 


Chess 


07/14/99 


98 DHR 1786 


Phipps 


09/02/99 


99 DHR 0032 


Morrison 


09/24/99 


99 DHR 0074 


Wade 


08/06/99 


99 DHR 0144*' 


Phipps 


07/02/99 


99 DHR 0145 


Mann 


06/11/99 


99 DHR 0216 


Gray 


08/13/99 


99 DHR 0218 


Wade 


08/06/99 


99 DHR 0220 


Phipps 


06/08/99 


99 DHR 0230 


Mann 


07/07/99 


99 DHR 0392 


Gray 


11/18/99 


99 DHR 0396 


Gray 


12/20/99 


99 DHR 0401*' 


Wade 


07/30/99 


99 DHR 0414*' 


Wade 


07/30/99 


99 DHR 0546 


Gray 


10/12/99 


99 DHR 0712 


Wade 


03/09/00 


99 DHR 0766 


Phipps 


07/21/99 


99 DHR 0942 


Mann 


09/24/99 


99 DHR 1118 


Marm 


03/07/00 


00 DHR 0061 


Lassiter 


03/10/00 


99 DHR 0552 


Marm 


09/01/99 


99 DHR 0762 


Owens 


07/29/99 


ervices 

99 DHR 0538 


Gray 


08/02/99 


99 DHR 1132 


Gray 


12/20/99 



Consolidated Cases. 



1785 



NORTH CAROLINA REGISTER 



April 3, 2000 



14:19 



CONTESTED CASE DECISIONS 



AGENCY 

Division of Vocational Rehabilitation 

Dr. H. Michael Poole v. DHHS, Div ofVocational Rehabilitation 

Division of Social Services 

Robert H. Riley v. tedeU County DSS 

Robert H. Riley v. Health & Human Svcs., Div. of Social Services 
Joanna Price v. Caldwell County Social Services 99 DHR 0520 
April De'Shelle Turner v. DHHS, Div. of Social Service, 

Program Integrity Branch 
Betty S. Lewis v. DHHS, Div. of Social Services, Program Integrity 

Branch 

Veronica Owens v. Dept. of Social Services Union County 

Child Support Enforcement Section 
Grady J. Griffith v. Department of Human Resources 
Lindy Teachout v. Department of Health & Himian Services 
Thomas Ashley Stewart 11 v. Department of Health & Human Services 
Turau R. Johnson 1 v. Department of Human Resources 
Teresa L. Galloway v. Department of Human Resources 
June V. Pettus v. Department of Human Resources 
Floyd W. Hubbard v. Department of Human Resources 
Richard Arnold Collins v. Jones County DSS 
David S. Blackwelder v. Department of Human Resources 
June V. Pettus v. Department of Human Resources 
Walter M. Chlastawa v. Department of Human Resoiu'ces 
Grady J. Griffith v. Department of Human Resources 
John T. Raynor v. Department of Human Resources 
Kenneth Wayne Adair v. Department of Human Resources 
Randy Snead v. Department of Human Resources 
Shawn E. Williams v. Department of Human Resources 
Hiui G. Stokes v. Department of Health & Human Services 
Ronald E. Sanders v. Department of Human Resources 
Willie D. Davis v. Department of Human Resoiu'ces 
G.S. Hall v. Department of Health & Human Services 
Charles Stewart v. Department of Human Resources 
Sidney T. Dimn v. Department of Human Resources 
Kenneth A. McCrorie v. Department of Human Resources 
Daniel R. Klock v. Department of Human Resources 
David M. VanDyke v. Department of Human Resources 
Jerome Maddox v. Department of Health & Human Services 
Samuel L. Gordon v. Department of Health & Hiunan Services 
Sam Anderson v. Department of Human Resources 
Donald Edward Law II v. Department of Human Resources 
Sechia Lee Corbett v. Department of Human Resources 
Robert T. Ausband v. Department of Human Resources 
Shawn E. Wilhams v. Department of Human Resources 
Derrick Dobbins v. Department of Health & Human Services 
Antonio Melendez v. Department of Health & Hiunan Services 
William W. Heck v. Department of Human Resources 
Michael A. Lide v. Department of Human Resources 
Matthew S. Conklin v. Department of Health & Human Services 
Rickey Lightner v. Department of Human Resources 
Matthew S. Conklin v. Department of Health & Human Services 
Robert M. Chandler Jr. v. Department of Health & Human Services 
Jermaine L. Covington v. Department of Health & Human Services 
Mitchell Moses, Jr. v. Department of Health & Himian Services 
James Bear v. Department of Health & Human Services 
Grady L. Chosewood v. Department of Health & Human Services 
Fulton Allen Tillman v. Department of Health & Human Services 
Nathaniel Alston v. Department of Health & Human Services 
Bret Burtrum v. Department of Health & Human Services 
Cedric A. Hurst v. Department of Human Resources 
Dane Wesley Ware v. Department of Health & Human Services 
Paul H. Padrick v. Department of Health & Human Services 
Oscar William Willoughby Sr. v. Dept. of Health & Human Services 
Kelvin E. Townsend v. Department of Health & Human Services 



CASE 




NUMBER 


ALJ 


99 DHR 1495 


Gray 


99 DHR 0354 


Wade 


99 DHR 0355 


Wade 


Morrison 


06/10/99 


99 DHR 0927 


Gray 


99 DHR 0950 


Gray 


99 MIS 0677 


Mann 


97CRA1570 


Mann 


98 CRA 0727 


ReiUy 


99 CRA 0628 


ReiUy 


99 CRA 1697 


Chess 


00 CRA 0010 


Wade 


96CSE1721"' 


Mann 


96CSE1725 


ReiUy 


96CSE1810 


ReiUy 


97CSE04I6 


Morrison 


97 CSE 0867*" 


Maim 


97 CSE 1464 


Gray 


97 CSE 1569 


Mann 


98 CSE 0054 


Gray 


98 CSE 0229 


Morrison 


98 CSE 0544 


Gray 


98 CSE 0845 


Phipps 


98 CSE 0898 


Gray 


98 CSE 1 182 


Mann 


98 CSE 1387 


Maim 


98 CSE 1392 


ReiUy 


98 CSE 1419 


Mann 


98 CSE 1428 


ReiUy 


98 CSE 1435 


Gray 


98 CSE 1440 


Morrison 


98 CSE 1549 


Mann 


98 CSE 1562 


Mann 


98 CSE 1563 


Chess 


98 CSE 1585 


Mann 


98 CSE 1586 


Morrison 


98 CSE 1588 


Phipps 


98 CSE 1612 


Mann 


98 CSE 1613 


Phipps 


98 CSE 1616 


Lassiter 


98 CSE 1635 


Chess 


98 CSE 1638 


Mann 


98 CSE 1700 


Mann 


98 CSE 1702" 


Lassiter 


98 CSE 1717 


ReiUy 


98 CSE 1785" 


Lassiter 


98 CSE 1789 


Phipps 


99 CSE 0209 


Lassiter 


99 CSE 02 17 


Wade 


99 CSE 0275 


ReiUy 


99 CSE 0301 


Mann 


99 CSE 03 11 


ReiUy 


99 CSE 03 17 


Mann 


99 CSE 03 18 


Wade 


99 CSE 0330 


Chess 


99 CSE 0359 


Gray 


99 CSE 0370 


Mann 


99 CSE 0371 


Morrison 


99 CSE 0373 


Phipps 



DATE OF 
DECISION 



01/04/00 

07/21/99 
07/21/99 

10/21/99 

12/20/99 

08/17/99 



10/26/99 
06/24/99 
06/14/99 
01/22/00 
02/21/00 
09/17/99 
09/02/99 
06/28/99 
08/24/99 
09/17/99 
02/24/00 
10/26/99 
10/21/99 
06/30/99 
10/21/99 
09/21/99 
07/23/99 
10/26/99 
09/17/99 
06/24/99 
09/17/99 
01/11/00 
08/04/99 
10/20/99 
09/17/99 
09/17/99 
01/04/00 
09/17/99 
06/25/99 
09/21/99 
11/02/99 
09/21/99 
01/21/00 
09/30/99 
09/17/99 
03/07/00 
01/12/00 
1 1/02/99 
01/12/00 
05/27/99 
11/18/99 
11/30/99 
03/07/00 
07/01/99 
06/30/99 
07/01/99 
07/14/99 
08/10/99 
06/28/99 
1 1/02/99 
06/28/99 
07/12/99 



PUBLISHED DECISION 
REGISTER CITATION 






14:19 



NORTH CAROLINA REGISTER 



April 3, 2000 



1786 



CONTESTED CASE DECISIONS 



AGENCY 

Billy J. Young v. Department of Health & Human Services 
Rodney Eugene Caldwell v. Department of Health & Human Services 
Adelheide J. Cooper v. Department of Health & Human Services 
Beverly K. Thompson v. Department of Health & Human Services 
Michael L. Timmer v. Department of Health & Human Services 
Elizabeth F. West v. Department of Health & Human Services 
Troy Gibson v. Department of Health & Human Services 
Roy D. Washington v. Department of Health & Human Services 
Everett A. Mitchell v. Department of Health & Human Services 
Corey Antoine Johnson v. Department of Health & Human Services 
Holland E. Harold v. Department of Health & Human Services 
Larry Lowell Dixon v. Department of Health & Human Services 
Calvin D. Alston v. Department of Health & Human Services 
Marquel Simmons v. Department of Health & Human Services 
Anthony Vincente Battista v. Department of Health & Human Services 
Gerald Scott Saucier v. Department of Health & Human Services 
Lawrence Gordon Soles v. Department of Health & Human Services 
Mohamed Moustafe v. Department of Health & Human Services 
Damion C. Graham v. Department of Health & Human Services 
Vicky L. Day v. Department of Health & Human Services 
Matthew ConMin v. Department of Health & Human Services 
Charhe James White v. Department of Health & Human Services 
Bennie Lamar Knighten v. Department of Health & Human Services 
Larie Bolton v. Department of Health & Human Services 
Randy Lewis Bryant v. Department of Health & Human Services 
Earl C. Jones, Sr. v. Department of Health & Human Services 
Joseph F. Donaldson, IH v. Department of Health & Hiunan Services 
Naion V. Pride v. Department of Health & Human Services 
Claude W. Jordan v. Department of Health & Human Services 
Henry Roosevelt Mercer v. Department of Health & Human Services 
Bobby Gene Owens v. Department of Health & Human Services 
Thomas L. Vaughn v. Department of Health & Human Services 
Robert F. Skipper v. Department of Health & Hitman Services 
Gerald W. Lawson v. Department of Health & Human Services 
David S. Yusko v. Department of Health & Himian Services 
Debbie Gabnon Moore v. Department of Health & Human Services 
Kenneth Dana Kirk v. Department of Health & Human Services 
Gill T. Smith v. Department of Health & Human Services 
Clarence Earl Burden v. Department of Health & Human Services 
Gary Willis v. Department of Health & Himian Services 
Phillip Drye v. Department of Health & Human Services 
William Kizzie v. Department of Health & Human Services 
June S. Shepherd v. Department of Health & Human Services 
James Homoki v. Department of Health & Human Services 
Frank Edward Crane v. Haywood Co. Dept. of Social Services 
Michael Bryant v. Department of Health & Human Services 
John Awuruonye v. Department of Health & Human Services 
Richard A. McKeUerv. Department of Health & Human Services 
Sharon Tucker v. Department of Health & Human Services 
Darryl A. Bonner, Sr., v Department of Health & Human Services 
Louella R. Snider v Department of Health & Human Services 
Raymond Ortiz v. Department of Health & Human Services 
Eddie Southards v. Department of Health & Human Services 
Adelheide Cooper v. Department of Health & Human Services 
Dalvin Leon Eggleston v. Department of Health & Human Services 
Elliot G. SkiUera v. Department of Health & Hviman Services 
John Ciccarelli v. Department of Health & Human Services 
Eugene R. Hoover v. Department of Health & Human Services 
David Black v. Department of Health & Human Services 
David Black v. Department of Health & Human Services 
Malcolm S. Mungo v. Department of Health & Human Services 
Phillip W. Wyman, Jr. v. Department of Health & Human Services 
Terry J. Vickers v. Department of Health & Human Services 
Reginald B. Bratton v. Department of Health & Human Services 
John J. Lowman v. Department of Health & Human Services 
George T. Crudup v. Department of Health & Human Services 
Ha.san A. Rahman v. Department of Health & Human Services 



CASE 




DATE OF 


PUBLISHED DECISION 


NUMBER 


ALJ 


DECISION 


REGISTER CITATION 


99 CSE 0374 


Reilly 


06/14/99 




99 CSE 0427 


Lassiter 


10/20/99 




99 CSE 0428 


Phipps 


07/19/99 




99 CSE 0435 


ReiUy 


06/14/99 




99 CSE 0437 


Wade 


06/08/99 




99 CSE 0451 


Morrison 


05/25/99 




99 CSE 0462 


Owens 


07/19/99 




99 CSE 0481 


ReiUy 


06/25/99 




99 CSE 0483 


Chess 


10/05/99 




99 CSE 0486 


Gray 


09/13/99 




99 CSE 0509 


Maim 


11/02/99 




99 CSE 05 18 


Morrison 


08/24/99 




99 CSE 0539 


Owens 


08/10/99 




99 CSE 0547 


Wade 


08/06/99 




99 CSE 0551 


Chess 


08/31/99 




99 CSE 0576 


Mann 


06/09/99 




99 CSE 0581 


Morrison 


06/09/99 




99 CSE 0582 


Owens 


08/05/99 




99 CSE 0635 


Wade 


12/06/99 




99 CSE 0679 


Gray 


09/27/99 




99 CSE 0689 


Mann 


09/17/99 




99 CSE 0690 


Morrison 


07/20/99 




99 CSE 0702 


Owens 


09/20/99 




99 CSE 0735 


Phipps 


08/06/99 




99 CSE 0737 


ReiUy 


09/20/99 




99 CSE 0801 


Gray 


08/10/99 




99 CSE 0802 


Mann 


11/02/99 




99 CSE 0825 


Phipps 


08/20/99 




99 CSE 0831 


Reilly 


10/11/99 




99 CSE 0841 


Wade 


10/20/99 




99 CSE 0877 


Gray 


10/11/99 




99 CSE 0883 


Mann 


11/08/99 




99 CSE 0899 


Morrison 


10/20/99 




99 CSE 0909 


Lassiter 


11/16/99 




99 CSE 0953 


Chess 


12/13/99 




99 CSE 0957 


Gray 


10/18/99 




99 CSE 0972 


Mann 


10/26/99 




99 CSE 101 5 


Wade 


11/30/99 




99 CSE 1037 


Chess 


11/18/99 




99 CSE 1040 


Gray 


12/02/99 




99 CSE 1043 


Mann 


12/14/99 




99 CSE 1049 


Morrison 


12/01/99 




99 CSE 1074 


Lassiter 


12/09/99 




99 CSE 1141 


Lassiter 


01/05/00 




99 CSE 11 68 


Wade 


01/04/00 




99 CSE 1235 


Gray 


11/17/99 




99 CSE 1258 


Mann 


01/12/00 




99 CSE 1264 


Lassiter 


01/21/00 




99 CSE 1283 


ReiUy 


11/30/99 




99 CSE 1284 


Wade 


02/03/00 




99 CSE 1286 


Gray 


02/08/00 




99 CSE 1287 


Mann 


01/12/00 




99 CSE 1288 


Morrison 


11/30/99 




99 CSE 1310 


Lassiter 


12/23/99 




99 CSE 1311 


Mann 


03/07/00 




99 CSE 1313 


ReiUy 


01/24/00 




99 CSE 1324 


Wade 


12/15/99 




99 CSE 1333 


Morrison 


12/20/99 




99 CSE 1334 


ReiUy 


12/17/99 




99 CSE 1338 


ReiUy 


12/17/99 




99 CSE 1345 


Lassiter 


12/23/99 




99 CSE 1354 


Mann 


02/08/00 




99 CSE 1360 


Wade - 


02/22/00 




99 CSE 1368 


Morrison 


02/08/00 




99 CSE 1374 


Marm 


02/08/00 




99 CSE 1375 


Reilly 


01/05/00 




99 CSE 1378 


Gray 


12/20/99 





1787 



NORTH CAROLINA REGISTER 



April 3, 2000 



14:19 



CONTESTED CASE DECISIONS 



AGENCY 

Franlde D. Lewis v. Department of Health & Human Services 
Warren Love, Jr. v Department of Health & Human Services 
Robert E. Wilson v. Department of Health & Himian Services 
Derick C. Graham v. Department of Health & Human Services 
Wilham Kizzie v Department of Health & Human Services 
King O. WiUiams v. Department of Health & Human Services 
Michael J. Artis V. Department of Health & Human Services 
Jay Martin Cmeckiy v. Department of Health & Human Services 
Keith L. Epps v. Department of Health & Human Services 
Randolph C. Pitcock v. Department of Health & Human Services 
Keith J. UUom v. Department of Health & Htmian Services 
Robert E. Hall v. Department of Health & Human Services 
Nelson B. Chambers v. Department of Health & Human Services 
William Wilcox v. Department of Health & Human Services 
Patrick Lindsey v. Department of Health & Human Services 
Sutee Vongvilay v. Department of Health & Himian Services 
Demetrius Gamble v. Department of Health & Hiunan Services 
Robert Potts v. Department of Health & Human Services 
Manuel U. Marin v. Department of Health & Human Services 
Ray Robinson v. Department of Health & Human Services 
James Scott Perry v. Department of Health & Human Ser\ices 
Bobby L. Bell v. Department of Health & Human Services 
Donahue Golden v. Department of Health & Himian Services 
Darrick A. Fewell v. Department of Health & Himian Services 
Everton Walker v. Department of Health & Human Services 
Charles Bradley v. Department of Health & Human Services 
CliflFored Blackburn v. Department of Health & Human Services 
James Freeman v. Department of Health & Human Services 
Kevin Vereen v. Department of Health & Human Services 
Robert T. Ausband v. Department of Health & Human Services 
Samuel G. Wilson v. Department of Health & Human Services 
Terrrence B. Dean v. Department of Health & Human Services 
Wilhe J. Gadson v. Department of Health & Human Services 
Aherrik Lane v. Department of Health & Human Services 
Michael David Jarvis v Department of Health & Human Services 
Amy Logan v. Department of Health & Human Services 
Mickey Robinson v. Department of Health & Human Services 
Johnathan O. Smith v. Department of Health & Human Services 
Dawud S. Shabazz v. Department of Health & Human Services 
Calvin L. McFayden v. Department of Health & Human Services 
E. Monica Ward-Murray v. Department of Health & Human Services 
Dennis R. Carros, Jr. v. Department of Health & Human Services 
Wayne L. DeRoss v. Department of Health & Human Services 
Rex E. Bamett v. Department of Health & Human Services 
Angela M. White v. Department of Health & Human Services 
Charles H. Bryson, Jr. v. Department of Health & Human Services 
Pamatha Shields v. Department of Health & Human Services 
Karlos M. Gregory v. Department of Health & Human Services 
FarreU John Jordan v. Department of Health & Human Services 
Roger S. Chandler v. Department of Health & Human Services 
Wilham H. Strange v. Department of Health & Human Services 
Joseph E. Hosch v. Department of Health & Human Services 
George L. Cherry v. Department of Health & Human Services 
Dedrick L. Adell v. Department of Health & Human Services 
Elhott W. Ross 82CVD008898 v. Dept. of Health & Human Services 
Albert D. CXitzman n v. Department of Health & Human Services 
Jose A. Baralaga v. Department of Health & Human Services 
Thomas A. Stewart, n v. Department of Health & Human Services 
Donald D. Birkhofer v. Department of Health & Human Services 
Dennis D. Home v. Department of Health & Human Services 
Vashon Kearney v. Department of Health & Human Services 
Peter Feige v. Department of Health & Human Services 
Donald S. Dorest v. Department of Health & Human Services 
Randy Russotti v. Department of Health & Human Services 
Malcohn Kelly league v. Department of Health & Human Services 
Damion C. Graham v. Department of Health & Human Services 
Willie J. Curry v. Department of Health & Human Services 



CASE 




DATE OF 


PUBLISHED DECISION 


NUMBER 


ALJ 


DECISION 


REGISTER CITATION 


99CSE1384 


Mann 


03/08/00 




99 CSE 1385 


Morrison 


02/08/00 




99 CSE 1404 


Morrison 


02/18/00 




99 CSE 1406 


Maim 


03/08/00 




99 CSE 1409 


Chess 


02/04/00 




99 CSE 1412 


Mann 


12/20/99 




99 CSE 1419 


Morrison 


12/13/99 




99 CSE 1425 


Reilly 


02/14/00 




99 CSE 1426 


Wade 


01/06/00 




99 CSE 1429 


Mann 


01/21/00 




99 CSE 1430 


Morrison 


02/10/00 




99 CSE 1435 


Mann 


02/14/00 




99 CSE 1437 


Mann 


01/04/00 




99 CSE 1440 


ReiUy 


01/04/00 




99 CSE 1444 


Gray 


02/21/00 




99 CSE 1445 


Maim 


02/25/00 




99 CSE 1446 


Morrison 


03/03/00 




99 CSE 1447 


Lassiter 


02/21/00 




99 CSE 1450 


Chess 


02/21/00 




99 CSE 1463 


Lassiter 


02/15/00 




99 CSE 1465 


Wade 


02/21/00 




99 CSE 1468 


Gray 


02/04/00 




99 CSE 1470 


Mann 


03/07/00 




99 CSE 1471 


Morrison 


02/24/00 




99 CSE 1476 


Lassiter 


01/11/00 




99 CSE 1477 


Mann 


01/12/00 




99 CSE 1478 


ReiUy 


02/21/00 




99 CSE 1480 


Wade 


02/21/00 




99 CSE 1485 


Morrison 


02/21/00 




99 CSE 1492 


Mann 


01/21/00 




99 CSE 1493 


Morrison 


03/02/00 




99 CSE 1497 


Mann 


02/25/00 




99 CSE 1498 


Reilly 


01/04/00 




99 CSE 1500 


Chess 


02/22/00 




99 CSE 1503 


Moirison 


02/04/00 




99 CSE 1505 


Mann 


02/25/00 




99 CSE 1506 


Reilly 


02/21/00 




99 CSE 1508 


Mann 


03/08/00 




99 CSE 1509 


Wade 


02/03/00 




99 CSE 1511 


Gray 


02/21/00 




99 CSE 1512 


Mann 


03/08/00 




99 CSE 1514 


Lassiter 


02/21/00 




99 CSE 1515 


Wade 


02/21/00 




99 CSE 1528 


Reilly 


02/24/00 




99 CSE 1532 


Gray 


02/11/00 




99 CSE 1533 


Mann 


02/25/00 




99 CSE 1534 


Morrison 


02/21/00 




99 CSE 1535 


Lassiter 


01/11/00 




99 CSE 1536 


Mann 


02/15/00 




99 CSE 1537 


Reilly 


02/25/00 




99 CSE 1539 


Wade 


02/25/00 




99 CSE 1540 


Chess 


02/22/00 




99 CSE 1546 


Reilly 


02/01/00 




99 CSE 1547 


Wade 


02/25/00 




99 CSE 1550 


Gray 


02/25/00 




99 CSE 1559 


Morrison 


02/25/00 




99 CSE 1564 


Morrison 


02/15/00 




99 CSE 1569 


Reilly 


01/11/00 




99 CSE 1570 


Wade 


01/07/00 




99 CSE 1572 


Mann 


03/07/00 




99 CSE 1576 


Gray 


02/08/00 




99 CSE 1581 


Mann 


02/15/00 




99 CSE 1588 


Lassiter 


01/05/00 




99 CSE 1606 


Gray 


02/08/00 




99 CSE 1621 


Mann 


02/15/00 




99 CSE 1622 


Morrison 


03/06/00 




99 CSE 1623 


Lassiter 


01/05/00 





7^:79 



NORTH CAROLINA REGISTER 



April 3, 2000 



1788 



CONTESTED CASE DECISIONS 



AGENCY 

Eugene B. Patton v. Department of Health & Hiiman Services 
Frank P. Nelson v. Depaitment of Health & Human Services 

Muriel Thomas v. DHR, Div of Social Services 
Kathryn P. Fagan v. Department of Health & Human Services 
Tresha W. Robinson v. Department of Health & Human Services 
Robert Dwayne Kennedy v. Department of Health & Human Services 
Deborah Seegars v. Department of Health & Human Services 
LiUian Anne Darroch v. Department of Health & Himian Services 
Evelyn C. Pratt v. Department of Health & Human Services 
Jacqueline D. Caldwell v. Department of Health & Human Services 



CASE 




DATE OF 


PUBLISHED DECISION 


NUMBER 


ALJ 


DECISION 


REGISTER CITATION 


99CSE1659 


Morrison 


03/08/00 




99CSE1667 


ReiUy 


02/15/00 




98 DCS 0631 


Wade 


12/15/99 




98 DCS 1769 


Morrison 


06/25/99 




99 DCS 0480 


Gray 


10/18/99 




99 DCS 0482 


Wade 


09/10/99 




99 DCS 0505 


Phipps 


06/30/99 




99 DCS 0555 


Gray 


07/06/99 




99 DCS 0813 


Owens 


08/25/99 




99 DCS 0974 


Morrison 


09/20/99 





JUSTICE 

Alarm Systems Licensing Board 

Terry Allen Brickey v. Alarm Systems Licensing Board 
Travis Eric Reardon v. Alarm Systems Licensing Board 
Brian Anthony Bartimac v. Alarm Systems Licensing Board 
Paiil Luke Walczak v. Alarm Systems Licensing Board 
Melvin T. Lohr v. Alarm Systems Licensing Board 
Bradford D. Penny v. Alarm Systems Licensing Board 
Benny L. Shaw v. Alarm Systems Licensing Board 
Tracey Lame Santana v. Alarm Systems Licensing Board 
Donald Eugene Boger v. Alarm Systems Licensing Board 
Kajur Washburn v. Alarm Systems Licensing Board 
Timothy Chezere Sifford v. Alarm Systems Licensing Board 
Howard Douglas Self v. Alarm Systems Licensing Board 
Edward W. Hester v. Alarm Systems Licensing Board 
Steven Craig Holloway v. Alarm Systems Licensing Board 
Richard C. Young v. Alarm Systems Licensing Board 
Roger Bennett, Jr v. Alarm Systems Licensing Board 
Heather Lynn Grififin v. Alarm Systems Licensing Board 

Education and Training Standards Division 

Rock Steven Edwards v, Cnminal Justice Ed. & Training Stds. Comm. 
Michael Angelo Dimn, Sr. v Criminal Justice Ed. & Training Stds. Comm. 
Anthony Scott Hughes v. Sheriflfe' Ed. & Training Standards Comm. 
Hal Pilgreen v. Criminal Justice Ed. & Training Stds. Comm. 
Emma J. Kiser v. Sheriffs' Ed. & Training Standards Comm. 
Keith Allen Norris v. Sheriffs' Ed. & Training Standards Comm. 
Sherry Davis Kenney v. Criminal Justice Ed. & Training Stds. Comm. 
Leroy Darrell Jones, Jr. v. Criminal Justice Ed. & Training Stds. Comm. 
Brian G. Mead v. Criminal Justice Education & Training Stds. Comm. 
Steven Randolph Russell v. Criminal Justice Ed. & Training Stds. Comm. 
Russell Lee Yelverton v. Criminal Justice Ed. & Training Stds. Comm. 
James Marion Massey v. Criminal Justice Ed. & Training Stds. Comm. 
Mark E. Narron v. Sheriffs' Ed. & Training Stds. Commission 
Shean E. Taylor v. Sheriffs' Ed. & Tra inin g Stds. Commission 
Deimis L. Ramsingh v. Sheriffs' Ed. & Training Stds. Commission 
Sandra G. Armstrong v. Sheriffs' Ed. & Training Standards Comm. 
Edward L. Lusk v. Sheriffs' Ed. & Training Standards Comm. 
Toimette Bembury v. Sheriffs' Ed. & Training Standards Comm. 
Terry Leon Jones v. Criminal Justice Education & Training Stds. Comm. 
Noel Benjamin Rice v. Criminal Justice Ed. & Training Stds. Comm. 
Laveme Arlis v. Sheriffs' Ed. & Training Standards Commission 
Brenda J. Hines v. Sheriffs' Education & Training Stds. Comm. 
George Hoke Powell, Jr. v. Criminal Justice Ed. & Training Stds. Comm. 
Marcus Anthony Dixon v Sheriffs' Education & Training Stds. Comm. 
Charles S. Triplett v. Criminal Justice Ed. & Training Stds. Comm. 
Jack C. Davis v. Sheriffs' Education & Training Stds. Comm. 
Tommie L. Wiggins v. Shenfls' Education & Training Stds. Comm. 

Private Protective Services Board 

Tri-City Secunties and James G. Hutcherson v. Private Protective Svcs. Bd. 
Tri-City Securities and James G. Hutcherson v. Private Protective Svcs. Bd. 
Ordie Hazu McFarland v. Pnvate Protective Services Board 
Thomas E. Mewbom v. Private Protective Services Board 
Michael Lynn Arter v. Pnvate Protective Services Board 



99 DOJ 0097 


Wade 


05/21/99 




99 DOJ 0446 


Phipps 


07/28/99 




99 DOJ 0487 


Morrison 


05/25/99 




99 DOJ 0489 


Owens 


08/03/99 




99 DOJ 0490 


Morrison 


05/24/99 




99 DOJ 0522 


Morrison 


06/08/99 




99 DOJ 0523 


Morrison 


06/08/99 




99 DOJ 0524 


Phipps 


09/24/99 




99 DOJ 0715 


Owens 


07/29/99 




99 DOJ 0716 


Owens 


07/29/99 




99 DOJ 1022 


Morrison 


09/24/99 




99 DOJ 1230 


ReiUy 


10/27/99 




99 DOJ 1295 


Morrison 


12/03/99 




99 DOJ 1299 


Morrison 


12/07/99 




99 DOJ 1304 


Morrison 


12/03/99 




99 DOJ 1466 


Wade 


01/07/00 




99 DOJ 1734 


Morrison 


02/08/00 




98 DOJ 0906 


Chess 


05/13/99 




98 DOJ 1 503 


Chess 


01/20/00 


14:18 NCR 1649 


98 DOJ 1530 


Chess 


05/12/99 




98 DOJ 1775 


Chess 


06/09/99 




98 DOJ 1793 


Gray 


06/07/99 




99 DOJ 0045 


Maim 


07/29/99 


14:04 NCR 351 


99 DOJ 0067 


Wade 


06/08/99 




99 DOJ 0068 


Gray 


02/25/00 


14:19 NCR 1794 


99 DOJ 0106 


Gray 


10/07/99 




99 DOJ 0123 


Owens 


10/29/99 


14:11 NCR 928 


99 DOJ 0131 


Phipps 


08/11/99 




99 DOJ 0168 


ReiUy 


10/11/99 




99 DOJ 0453 


Morrison 


09/08/99 


14:07 NCR 568 


99 DOJ 0790 


ReiUy 


09/29/99 




99 DOJ 0796 


Gray 


11/04/99 




99 DOJ 0844 


Mann 


09/24/99 




99 DOJ 0846 


Phipps 


09/29/99 




99 DOJ 0934 


ReiUy 


09/29/99 




99 DOJ 1054 


Wade 


10/21/99 




99 DOJ 1058 


Chess 


03/02/00 




99 DOJ 1137 


Morrison 


01/31/00 




99 DOJ 1 138 


Wade 


10/14/99 




99 DOJ 1363 


Chess 


12/08/99 




99 DOJ 1527 


Chess 


01/21/00 




99 DOJ 1584 


Wade 


03/08/00 




99 DOJ 1586 


Wade 


03/08/00 




99 DOJ 1688 


Maim 


02/24/00 




98 DOJ 1749*' 


Phipps • 


09/02/99 




98 DOJ 1752*" 


Phipps 


09/02/99 




99 DOJ 0099 


Morrison 


10/12/99 




99 DOJ 0101 


Owens 


07/30/99 




99 DOJ 0262 


Wade 


05/25/99 





1789 



NORTH CAROLINA REGISTER 



April 3, 2000 



14:19 



CONTESTED CASE DECISIONS 



AGENCY 

Jeffrey S. Moore v. Private Protective Services Board 
Bonnie Marie Keller v. Private Protective Services Board 
Shawn E. Alexander v. Private Protective Services Board 
Ronald E. Sulloway v. Private Protective Services Board 
Raymond Solomon v. Private Protective Services Board 
Charles E. Evans, Jr v. Private Protective Services Board 
Lawrence Martin v. Private Protective Services Board 
WiUiam E. ElUs, Sr v. Private Protective Services Board 
Bobby James Nicholson v. Private Protective Services Board 
Murray J. Degnan v. Private Protective Services Board 
James Lee Morris v. Private Protective Services Board 
Thomas William Atchison v. Private Protective Services Board 
Mark l^vera Hewitt v. Private Protective Services Board 
Robert Steven Pekel v. Private Protective Services Board 
Peggy Ann Galespie v. Private Protective Services Board 
Michael Jaye Kom v. Private Protective Services Board 
Jacqueline Renee Haywood v. Private Protective Services Board 
Isaiah Komegay, Jr. v. Private Protective Services Board 
Wayne Orlando Miller v. Private Protective Services Board 
Richard Asiedu v. Private Protective Services Board 
David Gregory Mims v. Private Protective Services Board 
Garland D. Melvin v. Private Protective Services Board 
Jerron Devoa Caldwell v. Private Protective Services Board 
Theodore Little v. Private Protective Services Board 
Dennis L. Voting v. Private Protective Services Board 
Jose V. Vargas v. Private Protective Services Board 
Gwendolyn L. Gray v. Private Protective Services Board 
Allen D. Edenbum v. Private Protective Services Board 
Chris George McCracken v. Private Protective Services Board 
Wilham Torres v. Private Protective Ser\'ices Board 
John Smiley v. Private Protective Services Board 

PUBLIC INSTRUCTION 

Martin Wayne Fletcher v. St. Bd. of Educ, Dept of Public Instruction 
S.H. by and through her guardian and custodian, H.R and H.H v. 

Henderson County Board of Education 
Paula Morrill, individually/on behalf of John Morrill v. Wake Cty. Schools 
S.L.F. and S.F.F. v. Charlotte-Mecklenburg Board of Education 
Marshall Scott Brannan v. Department of Pubhc Instruction 
Matthew Weber, and his father and next friend, Brian Weber, and Brian 

Weber v. Wilkes County Schools 
Michael Mathison v. Charlotte-Mecklenburg Board of Education 
David J. Dew v. Charlotte-Mecklenburg Board of Education 
Deborah F. Brogden v. State Board of Education 
C. Kenneth Warrington v. Edgecombe Coimty Schools 
Edward Lawrence Morrill & Paula Marie Morrill v. Board of Directors 

Raleigh Charter High School 
Beverly Simon Hamilton v Union Coimty Board of Education 



CASE 




DATE OF 


PUBLISHED DECISION 


NUMBER 


ALJ 


DECISION 


REGISTER CITATION 


99 DOJ 0488 


Morrison 


05/24/99 




99DOJ0491 


Morrison 


05/24/99 




99 DOJ 0492 


Owens 


07/19/99 




99 DOJ 0493 


Morrison 


05/24/99 




99 DOJ 0494 


Morrison 


05/25/99 




99 DOJ 0496 


Morrison 


05/25/99 




99 DOJ 0526 


Morrison 


10/25/99 




99 DOJ 0527 


Morrison 


06/08/99 




99 DOJ 0528 


Phipps 


08/17/99 




99 DOJ 0529 


Gray 


1 1/29/99 




99 DOJ 0714 


Chess 


12/08/99 




99 DOJ 1018 


Morrison 


09/21/99 




99 DOJ 1019 


Gray 


11/10/99 




99 DOJ 1020 


Gray 


11/10/99 




99 DOJ 1121 


Chess 


12/08/99 




99 DOJ 1122 


Wade 


01/07/00 




99 DOJ 1123 


Gray 


11/10/99 




99 DOJ 1290 


Morrison 


12/07/99 




99 DOJ 1291 


Morrison 


12/09/99 




99 DOJ 1293 


Morrison 


12/09/99 




99 DOJ 1294 


Chess 


12/08/99 




99 DOJ 1296 


Morrison 


12/03/99 




99 DOJ 1297 


Chess 


12/08/99 




99 DOJ 1300 


Wade 


01/07/00 




99 DOJ 1301 


Morrison 


12/03/99 




99 DOJ 1302 


Morrison 


12/03/99 




99 DOJ 1303 


Morrison 


12/03/99 




99 DOJ 1305 


Morrison 


12/03/99 




99 DOJ 1417 


Morrison 


11/29/99 




99 DOJ 1733 


Morrison 


03/09/00 




00 DOJ 0016 


Morrison 


02/29/00 




98 EDC 0001 


Chess 


09/21/994 




98EDC1124 


Mann 


06/1 1/99 




98 EDC 1205 


Gray 


09/24/99 




98 EDC 1649 


Mann 


06/04/99 




98 EDC 1796 


Owens 


07/13/99 


14:07 NCR 565 


99 EDC 0291 


Mann 


09/07/99 




99 EDC 0390 


Gray 


12/16/99 




99 EDC 0498 


Gray 


12/13/99 




99 EDC 0734 


Reilly 


10/05/99 




99 EDC 0955 


Reilly 


09/29/99 




99 EDC 1080 


Chess 


01/11/00 




99 EDC 1280 


Gray 


02/01/00 





STATE PERSONNEL 



Department of Administration 

Bernard A. Brown v. Department of Administration 

Department of Agriculture 

H.C. Troxler, Jr. v. Dept. of Agriculture and Consumer Services 

Community Colleges 

Thomas Michael ChamberUn v. Department of Community Colleges 

Correction 

E. Wayne Irvin v. Department of Correction 

Calvia L. Hill v. Department of Correction 

Pershield DeLoatch v. Department of Correction 

Deborah Smith v. Department of Correction 

Maydean L. Taylor v. Department of Correction 

Ann McMilhan v. Morrison Youth Institution, Department of Correction 



99OSP1025 


Wade 


99 OSP 0659 


Chess 


99 OSP 0286 


Phipps 


94 OSP 1791 


Morrison 


98 OSP 0268 


Reilly 


98 OSP 1026 


Gray 


98 OSP 1126 


Chess 


98 OSP 1272 


Chess 


98 OSP 1275 


Chess 



01/14/00 



07/27/99 



06/25/99 



05/18/99 
02/15/00 
08/1 1/99 
06/22/99 
05/14/99 
05/12/99 



14:01 NCR 60 



14:19 



NORTH CAROLINA REGISTER 



April 3, 2000 



1790 



CONTESTED CASE DECISIONS 



AGENCY 

Edward Alan Roper v. DOC, Div. of Prisons, Western Youth Institute 

Shirley Sellars v. Department of Correction 

Sean R. Dillard v. Dept. of Correction, Pasquotank Correctional InsL 

DeCarlos Stanley v. Department of Correction 

Steve A. Matthews v. Department of Correction 

Patrick Smith v. Department of Correction 

Harry E. Kenan v. Capt. B.F. Lewis, Polk Youth Institution 

Robert Russell, Jr. v. Jeff Jones, Div of Community Corrections 

Judith Caves v. Department of Correction 

Shirley Sellars v. Department of Correction 

Richmond Fulmore v. Department of Correction, Wake Correctional 

Henry C. Parks v. DART/Admin., Ann Shea, Edward McCall, Thomas 

G. Ivester 
Jeny D. Crawford v. Department of Correction 
Walter L. Whitaker v. Capt. Ricky Johnson, Pasquotank Corr. Inst 
Angelo Alfonzo Smith v. Department of Correction 
Charles Creegan v. Department of Correction 
Kathi P. Brown v. NC Correctional Institute for Women 
David J. Dennis v. Department of Corrections, Polk Youth Institution 
Tara King v. Department of Corrections 
Joyce Ann Bullock v. Polk Youth Institution 
Timothy Ramey v. Department of Correction 
Curtis Lee Tucker v. Dept. of Correction - Caledonia 
Heather Williams v. Department of Correction 
Jime Annette Cooley v. DOC, Correction Enterprises 
Edward E. Hodge v. Department of Correction 
Russell S. Jackson v. Department of Correction, Albemarle 

Correctional Inst. /Michael York 
Valee Taylor v. Department of Correction 
Scott Powell v. Department of Correction, Central Prison 
Sharon Tucker v. Ms. LaVee Hamer, DOC, Gen. Counsel to the Secretary 
Jan C. Smith v. Department of Correction, Dart Cherry Program 
June Annette Cooley v. DOC, Correction Enterprises 
Judy A. Brewer v. Odom Correctional Institution 

Crime Control and Public Safety 

Thomas Michael Chamberlin v. DCCPS, Center for Missing Persons 
Ira Braswell FV v. Governor's Crime Commission, DCCPS 

North Carolina School for the Deaf 

Steve Crawford v. North Carolina School for the Deaf 
Danny Wilson Carson v. North Carolina School for the Deaf 
Eric Arden Hurley v. North Carolina School for the Deaf 

Employment Security Commission 

Russell J. Suga v. Employment Security Commission 

Environment and Natural Resources 

L. Clifton Carroll v. Dept of Natural Resources, Div. of Parks and 

Recreation 
Larry A. Campbell v. NC Wildlife Resources Commission 
Pathe Vivek v. Department of Envirormient & Natural Resources 

Health and Human Services 

Debbie L. Whitley v. Wake Coimty Department of Social Services 

Vera Crenshaw v. DHHS, Julian F. Keith Ale. & Drug Abuse Trtmt. Ctr. 

Ivey G. Rhodes v. Pitt County Mental Health Center 

Dianna H. Smith v. DHHS, Caswell Center 

Odessa D. Gwynn v. Caswell County Health Department 

Tonya Carson v. Bimcombe County Health Center 

Doris Virginia Wearing v. Durham County Health Department 

Norman Kinnett v. DHHS, Caswell Center 

Leon Kea v. DHR, OBerry Center 

Julia A. Cameron v. John L'mstead Hospital, Health & Human Services 

Danny Jacob v. Onslow County Board of Health 

Jency Abrams v. Department of Health & Human Services 

Joann Thomas v. Neuse Mental Health Center 



CASE 




DATE OF 


PUBLISHED DECISION 


NUMBER 


ALJ 


DECISION 


REGISTER CITATION 


98 0SP1644 


Gray 


08/1 1/99 




98 0SP1788'° 


Gray 


09/30/99 




98OSP1800 


Gray 


08/26/99 




99 OSP 0027 


Morrison 


06/22/99 




99OSP0162 


Morrison 


08/20/99 




99 OSP 0163 


Morrison 


10/14/99 




99 OSP 0257 


Phipps 


06/07/99 




99 OSP 0258 


Lassiter 


09/29/99 




99 OSP 0338 


Phipps 


09/29/99 


14:11 NCR 945 


99 OSP 0386'° 


Gray 


09/30/99 




99 OSP 0416 


Mann 


06/04/99 




99 OSP 05 12 


Morrison 


09/22/99 




99 OSP 0577 


ReiUy 


06/02/99 




99 OSP 0644 


Gray 


10/12/99 




99 OSP 0675 


Gray 


11/04/99 




99 OSP 0765 


Reilly 


08/03/99 




99 OSP 0914 


Chess 


12/10/99 




99 OSP 091 8 


Chess 


10/12/99 




99 OSP 0930 


Chess 


11/08/99 




99 OSP 1065 


Wade 


11/15/99 




99 OSP 1085 


Chess 


11/22/99 




99 OSP 1097 


Wade 


12/06/99 




99 OSP 1163 


Reilly 


12/13/99 




99 OSP 1164'' 


Lassiter 


02/18/00 




99 OSP 1224 


Lassiter 


01/03/00 




99 OSP 1236 


Morrison 


12/22/99 




99 OSP 1256 


Lassiter 


01/05/00 




99 OSP 1413 


Mann 


03/01/00 




99 OSP 1519 


Gray 


01/10/00 




99 OSP 1647 


Gray 


01/21/00 




99 0SP1662'' 


Lassiter 


02/18/00 




99 OSP 1714 


Mann 


03/03/00 




99 OSP 0596*" 


Gray 


08/16/99 




99 OSP 1331 


Lassiter 


02/09/00 




99 OSP 0640 


Lassiter 


10/18/99 




99 OSP 0641 


Lassiter 


10/18/99 




99 OSP 0087 


ReiUy 


06/24/99 




96 OSP 1122 


ReiUy 


05/26/99 




98 OSP 0914 


Gray 


10/22/99 


14:12 NCR 1082 


99 OSP 0050 


Morrison 


11/10/99 


14:12 NCR 1086 


99 OSP 0956 


Chess 


10/06/99 




97 OSP 0722 


Phipps 


09/27/99 




98 OSP 0456 


Gray 


08/05/99 




98 OSP 0924 


Phipps 


07/09/99 




98 OSP 1245 


Chess 


01/10/00 




98 OSP 1299 


Gray 


08/25/99 




98 OSP 1335 


Gray 


02/16/00 




98 OSP 1432 


Reilly 


06/18/99 




98 OSP 1477 


Wade 


02/29/00 




98 OSP 1733 


Morrison 


12/22/99 




99 OSP 0053 


Morrison 


06/22/99 




99 OSP 0129 


Gray 


10/12/99 


14:11 NCR 936 


99 OSP 0147 


Owens 


08/1 1/99 




99 OSP 0254 


Reilly 


01/13/00 


14:18 NCR 1661 



1791 



NORTH CAROLINA REGISTER 



April 3, 2000 



14:19 



CONTESTED CASE DECISIONS 



AGENCY 

Lisa Adams-Houghton v. Rocldnghara Co. Dept of Social Services 
Linda R. Walker v. Craven County Health Dept., Craven County 

Dept. of Social Services, and Craven County 
Timothy Truzy v. Department of Health & Human Services 
Carlos D. Burks, Sr. v. North Carolina Special Care Center 
Donna Pittman v. Department of Health & Human Services 
Bryan Benson v. Durham Cty. Area MH/DD/SAS Program 
Shirley C. Jones v. Department of Health & Human Services 
James Michael Duim v. Pitt Co. Mental Health, Developmental 

Disabilities, and Substance Abuse Area Program 
Odell Hudson v. Health & Human Svcs., Dorothea Dix Hospital 
Erica Joynes v. Durham County Department of Social Services 
Thomas Michael Chamberlin v. Off. of Juvenile Justice, Juvenile 

Services Division, 14* District Court Division 
Cheryl Highsmith v. DHHS, Youth Svcs., New Hanover Reg. Juvenile 

Detention Center 
Carolyn A. Carter v. Cleveland County Dept of Social Services 
Veda B. GiU v. Durham County Department of Social Services 
Patricia Pender v. DHHS, Eastern NC School for the Deaf 
Dennis W. Retzlaffv. Warren County Board of Health 
Alan J. Herrick v Rutherford-Polk MH/DD/SAS 
Jency Abrams v. Department of Health & Human Services 
Todd L. Chavis v. Murdoch Center 

Edna W. Childs v. Gaston-Lincoln Area Mental Health Program 
Donald R. Hopper v. Dart Caswell 44 1 5 
Anthony Ratcliffv. Department of Health & Human Services 

Johnston County 

Lili Romaine Lee v. Coimty of Johnston 

Justice 

Thomas Michael Chamberlin v. Justice, Justice Academy 

Labor 

Robert C. Adams v. Department of Labor 

Department of Public Instruction 

Billy Mcliachem v. Schools of Robeson County 
John Lee Herbin v. Smarkand Manor Training School 
Linda D. Chapman v. Lenoir County PubUc Schools 

State Auditor 

Antonio Allen Bolton v. Office of the N.C. State Auditor 

Transportation 

Michelle Maloney Wilkins v. Department of Transportation 

Judy S. Grindstaff V. Department of Transportation 

Charles W. McAdams v. Dept. of Transportation, Div/Motor Vehicles 

Larry R. Lane v. Department of Transportation 

Ronald Roberson v. Dept. of Transportation, Right-of-Way Branch 

Shelvia Davis v. Department of Transportation 

Caimahta Daniels v. Department of Transportation 

Paul N. Harris v. Dept. of Transportation, Div of Motor Vehicles 

Carolyn Campell v. Dept of Transportation 

University of North Carolina 

Wanda Troxler v. A & T Stale University and Dr. Ray J. Davis 
Vivian Smith Hammiel, Ling-Chih C. Hsu and Joel A. Williams v. East 

Carolina University 
Vivian Smith Hammiel, Ling-Chih C. Hsu and Joel A. Williams v. East 

Carolina University 
Vivian Smith Hammiel, Ling-Chih C. Hsu and Joel A. Williams v. East 

Carolina University 
Jackie S. Flowers v. East Carolina University 
James A. Benton v. University of North Carolina at Charlotte 
Tracey L. Wilson v. North Carolina Central University 
Rex A. Coughenour v. University of North Carolina at Chapel Hill 



CASE 




DATE OF 


PUBLISHED DECISION 


NUMBER 


ALJ 


DECISION 


REGISTER CITATION 


99 OSP 0278 


Gray 


11/04/99 




99OSP0281 


Chess 


03/07/00 




99 OSP 0316 


Gray 


10/22/99 




99 OSP 0325 


Owens 


08/25/99 




99 OSP 0444 


Morison 


12/15/99 




99 OSP 05 16 


Gray 


08/31/99 




99 OSP 0533 


Mann 


09/24/99 




99 OSP 0549 


Gray 


12/21/99 




99 OSP 0609 


Gray 


07/07/99 




99 OSP 0671 


Gray 


07/13/99 




99 OSP 0673** 


Gray 


08/16/99 




99 OSP 0763 


Owens 


09/03/99 




99 OSP 1055 


Gray 


1 1/29/99 




99 OSP 1090 


Morrison 


1 1/09/99 




99 OSP 1124 


Lassiter 


03/06/00 




99 OSP 1157 


Morrison 


02/22/00 


14: 19 NCR 1800 


99 OSP 1357 


Chess 


01/21/00 




99 OSP 1382 


Mann 


02/04/00 




99 OSP 1388 


Mann 


02/09/00 




99 OSP 1454 


Morrison 


12/29/99 




99 OSP 1481 


Mann 


02/09/00 




99 OSP 1483 


Phipps 


09/22/99 




99 OSP 0456 


Morrison 


06/02/99 




99 OSP 0308 


Phipps 


06/11/99 




99 OSP 0667 


Gray 


07/28/99 




99 OSP 0189 


Wade 


09/04/99 




99 OSP 0273 


Gray 


08/04/99 




99 OSP 0691 


ReiUy 


08/16/99 




99 OSP 0979 


Wade 


11/22/99 




98 OSP 0836 


Morrison 


05/20/99 




98 OSP 1028 


Gray 


09/30/99 




99 OSP 0034 


Mann 


06/23/99 




99 OSP 0105 


Mann 


06/11/99 




99 OSP 0142 


Morrison 


06/08/99 




99 OSP 0156 


Owens 


06/23/99 




99 OSP 0264 


Gray 


08/20/99 




99 OSP 0625 


Gray 


12/02/99 


14:14 NCR 1336 


99 OSP 0739 


Reilly 


12/03/99 


14:14 NCR 1339 


97 OSP 0819 


Phipps 


08/02/99 




97 0SP1268*' 


Phipps 


07/06/99 




97 OSP 1269*^ 


Phipps 


07/06/99 




97OSP1270*' 


Phipps 


07/06/99 




98 OSP 1618 


Reilly 


06/24/99 




99 OSP 0047 


Wade 


10/08/99 




99 OSP 0388 


Chess 


12/06/99 




99 OSP 051 7*' 


Reilly 


08/27/99 





14:19 



NORTH CAROLINA REGISTER 



Aprils, 2000 



1792 






CONTESTED CASE DECISIONS 



AGENCY 

Rashmi P. Eddins v. University of North Carolina at Charlotte 
Anna Anita Huff v. Dr. Lonnie Sharpe/Dr. Reza Salami -Coll./Engineering 
Rex A. Coughenour v. University of North Carolina at Chapel Hill 
Thomas Michael Chamberlin v. UNC @ Chapel Hill, Dept of University 

Housing, Division of Student Affairs 
Halycon Tudie Blake v. University of North Carolina at Chapel Hill 
Bridgette R. Booker v. Winston-Salem State University 
Rex A. Coughenour v. University of North Carolina at Chapel HilJ 
Temperance T. Tobe v. North CaroUna Central University 
Phyllis Martin v. NC A & T State University 
Inez Eason v. University of North Carolina at Wihnington 
James W, Murrell v. University of North Carolina at Chapel Hill 
Harold Richardson v. University of North Carohna at Charlotte 
Albertina Thompson v. Chancellor James Renick of NC A & T Univ. 

DEPARTMENT OF LABOR 

Bellacino's v. Department of Labor 

DEPARTMENT OF TRANSPORTATION 

Peter Kay., Stem v. Department of Transportation 

UNTVERSITY OF NORTH CAROLINA 

Stephanie A. Payne v. UNC Hospitals 
Barbara A. Russell v. UNC Hospitals 
Robin Perkins Stephens v. LXC Hospitals 
Rita Jo Kincaid v. U'NC Hospitals 
Rita Jo Kincaid v. U'NC Hospitals 
Edna Heath v. U'NC Hospitals 
Clinton E. Taylor, Sr., v. UNC Hospitals 



CASE 




DATE OF 


PUBLISHED DECISION 


NUMBER 


ALJ 


DECISION 


REGISTER CITATION 


99 OSP 0557 


Gray 


02/22/00 




99 OSP 0599 


Chess 


07/16/99 




99 OSP 0623** 


ReiUy 


08/27/99 




99 OSP 0674*" 


Gray 


08/16/99 




99 OSP 0686 


Gray 


07/08/99 




99 OSP 0731 


Chess 


09/03/99 




99 OSP 0830** 


Reilly 


08/27/99 




99 OSP 0865 


Chess 


08/24/99 




99 OSP 1030 


Lassiter 


01/04/00 




99 OSP 1069 


Mann 


02/14/00 




99 OSP 1102 


Morrison 


11/29/99 




99 OSP 1208 


Wade 


11/15/99 




99 OSP 1578 


Gray 


12/17/99 




99DOL1216 


Reilly 


12/14/99 




99 DOT 0668 


Owens 


07/29/99 




99 UNC 0375 


Morrison 


06/21/99 




99 UNC 0540 


Gray 


08/11/99 




99 UNC 0563 


Owens 


07/21/99 




99 UNC 0746*' 


ReiUy 


08/09/99 




99 UNC 0747*' 


ReiUy 


08/09/99 




99 UNC 0943 


Chess 


10/15/99 




99 UNC 1117 


Morrison 


12/22/99 





1793 



NORTH CAROLINA REGISTER 



April 3, 2000 



14:19 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 
COUNTY OF LENOIR 



IN THE OFFICE OF 

ADMINISTRATIVE HEARINGS 

99 DOJ 0068 



LEROY DARRELL JONES, JR., 
Petitioner, 



N.C. CRIMINAL JUSTICE EDUCATION AND TRAINING 
STANDARDS COMMISSION, 
Respondent 



PROPOSAL FOR DECISION 



Gray. 



This contested case was heard on November 30, 1999 in Farmville, North Carolina before Administrative Law Judge Beecher R. 



Pannone. 



APPEARANCES 

Petitioner was represented by Peter Mack, Jr. and Respondent was represented by Assistant Attorney General John P. Gravalec- 

ISSUES 

Did Petitioner commit the criminal offense of "assault inflicting serious injury" in violation of 12 NCAC 9A .0204(b)(3)(A)? 

Did Petitioner's actions and conduct regarding the commission of the offense of "assault inflicting serious injury" constitute a lack 
of good moral character? 

FINDINGS OF FACT 

Stipulated Facts 

1 . Both parties properly are before the Office of Administrative Hearings, in that jurisdiction and venue are proper, that both 
parties received notice of hearing, and that Petitioner received the Proposed Suspension of Correctional Officer Certification letter mailed 
by Respondent on November 30, 1998. 

2. The North Carolina Criminal Justice Education and Training Standards Commission (hereafter referred to as the 
Commission) has the authority granted under Chapter 17C of the North Carolina General Statutes and Title 12 of the North Carolina 
Administrative Code, Chapter 9, to certify criminal justice officers and to deny, revoke or suspend such certification. 

3 . Petitioner successflilly completed 1 60 hours of Basic Correctional Officer Training at the North Carolina Justice Academy, 
Salemburg, North Carolina on October 24, 1986. 

4. Petitioner apphed with the Commission for certification as a correctional officer on June 23, 1 986. 

5. Petitioner was issued a probationary certification (PRB 226080682) on September 23, 1986 by the Commission to serve 
as a fijll-time correctional officer. 

6. Petitioner was issued a general certification (GNB 226080682) on September 1 7, 1987, by the Commission to serve as 
a full-time correctional officer. 

7. On February 1 2, 1 996, Deputies Cahoon, Williams and Sergeant Ogren of the Lenoir County Sheriffs Office, in response 
to a third party call reporting a domestic incident, responded to A-33 Oakdale Drive, Mobile Home Park, Kinston, North Carolina. 



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8. On February 12, 1996, upon arrival at A-33 Oakdale Drive Mobile Home Park, Kinston, North Carolina, the Lenoir 
County SherifTs Deputies met with and interviewed Pamela Nicole Brown. Ms. Brown was then taken to the Lenoir Memorial Hospital. 
The Petitioner was arrested at the scene by Lenoir County Deputies and charged with "Assault Inflicting Serious Injury" in violation of 
N.C.G.S. § 14-33(c)(l). The Petitioner also was charged with Domestic Criminal Trespass. 

9. The criminal offense of Assault Inflicting Serious Injury constitutes a "Class B misdemeanor" pursuant to 12 NCAC 9A 
.0103(21)(b) of the Commission's administrative rules. 

10. On March 1 9, 1 996, the Lenoir County District Attorney dismissed the Assault Inflicting Serious Injury Charge (96 CR 
01 570). The Petitioner pled guilty to the Domestic Criminal Trespass charge and the Lenoir County District Court granted a Prayer-For- 
Judgment-Continued (PJC). 

Adjudicated Facts 

1 1 . Deputy Chris Cahoon of the Lenoir County SherifTs Office was on duty on February 12,1 996, and at approximately 5 :00 
a.m. he responded to an Assault/Domestic Violence call along with Sergeant Greg Ogren and Deputy Elena Liberty. The officers responded 
to a Hardees in Kinston and met with an individual named Janjuan Oliver. (Tp. 6). 

12. As a result of the meeting with Mr. Oliver the deputies proceeded to A33 Holiday Mobile Home Park in Kinston. Upon 
arrival at the scene, Deputy Cahoon observed the mobile home depicted in the photographs submitted into evidence and a blue van that was 
running. (Tp. 7, Respondent's Exhibits 2-5 ). 

13. Deputy Cahoon looked into the trailer by standing on the tongue on the exterior of the trailer. He saw the Petitioner in 
uniform making a motion as if pushing someone. Deputy Cahoon also saw a knife on a counter near where Petitioner stood. (Tp. 9). 

14. Deputy Cahoon went toward the door of the trailer. Petitioner opened the door and stepped out before Deputy Cahoon 
got to the door. Deputy Cahoon saw splatters of blood on the front of Petitioner's Department of Correction uniform. Petitioner told Deputy 
Cahoon that he had caught another man with his woman. Petitioner was polite and cooperative. (Tpp. 10-13, Respondent's Exhibit 6). 

15. Deputy Cahoon arrested Petitioner for assault inflicting serious injury and domestic criminal trespass. Deputy Cahoon 
observed no injuries to Petitioner and placed him in the Sheriffs patrol car. Petitioner did not complain to the officer that he suffered any 
injuries. Deputy Cahoon remained at the patrol car until Detective Randy Blizzard arrived to take charge of the scene. (Tp. 13). 

1 6. Deputy Liberty, a female officer, was the first officer to go into the trailer. She found Pamela Brown sitting on the couch 
in a wet robe. Pamela Brown had blood on her inner thighs around the vaginal area and her face was swollen on the right side. Deputy 
Cahoon went into the trailer and saw blood on the floor and broken glass from a Heinekin bottle. He also observed other bloody areas. (Tpp. 
14-16, Respondent's Exhibits 7-24). 

1 7. The officers took photographs of the interior of the trailer that night The photographs revealed blood on a couch, a small 
pool of blood near the front doorway and in the kitchen area, blood on the carpet and wall in the hallway, and a broken lamp and beer botde. 
(Tpp. 15-17, Respondent's Exhibits 7-24). 

1 8. Deputy Cahoon saw Pamela Brown, who was upset, with blood on her leg. He observed Deputy Liberty speaking with 
Ms. Brown. (Tp. 17). 

1 9. Deputy Cahoon took the Petitioner to the magistrate's ofTice and charged him with "AssauU Inflicting Serious Injury" and 
a second charge of "Domestic Criminal Trespass." (Tp. 18, Respondent's Exhibit 25). 

20. Prior to the incident of February 12, 1996, Petitioner and Pamela Brown had been dating for 8- 10 months. Theyhadbeen 
living together in the rented trailer at A-33 Oakdale Drive Mobile Home Park for about the last four months of that period. Pamela Brown 
worked at an apparel factory in Snow Hill but had not worked for the last four months prior to February 12,1 996. Petitioner had paid the 
rent on the trailer for approximately six months. During the 8- 1 month period. Petitioner and Pamela Brown became engaged to be married. 

2 1 . Petitioner and Pamela Brown stayed together at the trailer on alternate nights. On the nights when he was not at the trailer. 
Petitioner stayed with his mother who was in need of assistance in her home in Kinston. 



1795 NORTH CAROLINA REGISTER April 3, 2000 14:19 



CONTESTED CASE DECISIONS 



22. Petitioner had a key to the trailer. On February 11, 1996, Petitioner stayed with his mother. Pamela Brown called 
Petitioner on the night of February 11,1 996 while he was at his mother's house and asked him to bring the rent money by the next moming. 

23. On the way to work at the Department of Correction unit, Petitioner stopped by the trailer at about 5:00 a.m. to leave the 
rent money. He left the engine running in his van while he went inside the trailer to leave the rent money. After entering the trailer with his 
key, he met Pamela Brown in the hallway outside the bedroom. She had no clothes on and was being followed by Janjuan or Juan Oliver 
who immediately accused Pamela Brown of setting him up and asking Petitioner if he could gather his clothes and leave, which he did. 

24. Pamela Brown stated to Petitioner that the situation was not what he might be thinking it appeared to be and, ftirther, that 
they needed to talk. Petitioner indicated that there was nothing to talk about; he proceeded to gather some of his possessions and tried to 
walk out of the door. Pamela Brown prevented Petitioner's egress from the trailer byjumping onto his back and locking her legs around him. 
Petitioner slung her off and continued to try to leave. This process was repeated several times. Petitioner testified that he knocked a nail file 
out of Pamela Brown's hand as she was trying to cut or stab him with it but that he never hit her with his hands or anything else. 

25. Deputy Randy Blizzard of the Lenoir County SherifTs Department appeared as a criminal investigator at A-33 Oakdale 
Mobile Home Park on February 1 2, 1 996 at about 06:00 a.m. He was briefed by the other officers present and then interviewed Petitioner 
who was in custody in a patrol car. Petitioner told Deputy Blizzard that he had used his own key to gain entrance to the trailer. The 
investigation revealed no evidence of forced entry. Petitioner also told Deputy Blizzard that he had been upset during the incident and had 
hit Pamela Brown. Petitioner explained, during the hearing of this case, that the hitting he was referring to when interviewed by Deputy 
Blizzard was the slapping away of the finger nail file Pamela Brown came after him with. 

26. Both Pamela Brown and Petitioner testified that she fell over a bicycle in the trailer and cut her leg. A bicycle is shown 
in evidence photographs taken by the Sheriffs Department with blood on the floor in proximity to it 

27. Pamela Brown testified that Petitioner did not have a key to the trailer. She offered no explanation as to how he got in, 
even in the face of no evidence of a forced entry. She testified that she had Juan Oliver, a grown male, in the trailer with her at 5:00 a.m. 
when Petitioner came in. She testified that Petitioner met her in the hallway and hit her with his fists; grabbed and dragged her by her hair; 
dumped a bucket of water on her; kicked her between her legs so that she started to bleed; threatened to take her out into the country and shoot 
her; hit her over the head with a beer bottle; and pointed a knife at her. She testified that Deputy Cahoon saved her life by coming into the 
trailer because Petitioner had a knife and was about to cut her with it but had just put it down in the sink or on the counter when the Deputy 
came in. Deputy Cahoon's testimony was that he saw a knife lying on the counter as he watched through the front trailer window and that 
as he started toward the door. Petitioner walked out 

28. Pamela Brown testified that she and Petitioner had not stayed together for several days prior to the incident of February 
12,1 996 because she had been staying with her mother. 

29. Attorney at law Allen Foster lives and practices law in Kinston. He has lived and practiced there for approximately seven 
years, the frrst three of which he as an assistant district attorney for Lenoir and Wayne counties. Attomey Allen Foster appeared and testified 
in this contested case hearing. Petitioner retained Allen Foster to represent him in the matter of the criminal charges arising from the incident 
of February 1 2, 1 996. On March 8, 1 996, Attomey Foster met with Pamela Brown at his office. He taped the interview with her. During 
this interview, Pamela Brown stated that she loved Petitioner and wanted the charges dismissed. She did not mention having any fear of 
Petitioner. Attomey Foster did not question her to get the facts; she stated the facts to him. He did not tell her that Petitioner could be 
imprisoned and lose his job if convicted. 

30. Attomey Allen Foster prepared an affidavit as a resuh of Pamela Brown's visit which she signed after taking an oath that 
its contents were true. Tliat affidavit is in complete contrast with her testimony in this hearing; it reads as follows: 



NORTH CAROLINA 

LENOIR COUNTY 

STATE OF NORTH CAROLINA 



LEROY DARELL JONES, JR. 



IN THE GENERAL COURT OF 

JUSTICE 

DISTRICT COURT DIVISION 

FILE NO. 96 CR 



AFFIDAVIT OF 

PAMELA NICOLE BROWN 



14:19 



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April 3, 2000 



1796 






CONTESTED CASE DECISIONS 



I, Pamela Nicole Brown, having been first duly sworn do hereby state the following: 

1. My full name is Pamela Nicole Brown. I am twenty-seven (27) years of age and my social security 
number is 239-29^355. 

2. Prior to this incident, the above named defendant, Leroy Darell Jones, Jr., and I had been living 
together for about four months in a residence that we had leased together for that purpose. 

3. Prior to this incident Leroy and I were engaged to get married and are still planning the same. 

4. Leroy and I had stayed together in our residence as recently as the Wednesday before this incident 
(February 7,1996.) On the date in question, February 12, 1996, Leroy entered our home with a key 
that I had given him at approximately 5:00 a.m. 

5. When he did he caught me clothed only in a jacket and with another man in our bed room. Obviously, 
Leroy became very upset and an argument ensured I had been out with this other man that evening 
and retumed with him to our house at approximately 3:00 a.m. 

6. Leroy and the other man had some words and the other man then left the residence. 

7. Leroy and I then engaged in a heated argument and both said things that we not wished we had not. 

8. Prior to February 12,1 996, Leroy had never hit me and I do not believe that he will do so in the future. 

9. Inasmuch as 1 contributed to the argument on February 12,1 996, 1 did not call the police. That was 
done by the other man and was not done at my request. 

10. After the SherifFs Deputies arrived and arrested Leroy, the Sheriffs Deputies asked me to go to 
Lenoir Memorial Hospital to be checked. 1 reluctantly went, however, I ended up leaving and just 
going to my mother's house and going to sleep. 

II. After the incident I called Leroy and asked him to meet me on Queen Street We then met and 
discussed the incident and resolved it to our satisfaction. 

12. Since this time Leroy and I have been very fiiendly and want to continue our relationship as if this 
incident never occurred. Weboth willing to forgive each other for the events of that morning. Hove 
Leroy and we are still planning to get married. 

13. Since this date Leroy takes me to and picks me up from work daily. 1 have appeared fi'eely and 
voluntarily at the law office of Gerrans, Foster & Kriss, P. A. to ask Attomey Allen Foster to prepare 
this affidavit for me for several reasons. First and foremost, the magistrate's order that was issued 
charging Leroy with misdemeanor assault inflecting serious injury is incorrect when it states that he 
cut me with a broken beer bottle. He, in fact, did not cut me with a broken beer bottle or any other 
object. 

14. 1 do not want to have to go to court or to testify in this matter. 

15. Leroy was place in jail as a result of this matter, against my wishes, and 1 do not want him to go back 
to jail or to be punished further. 

16. I am asking that the District Attomey accept this affidavit and dismiss both of the now pending 
charges of misdemeanor assault inflicting serious injury and domestic criminal trespass against Leroy 
Jones. It is not my desire that he be convicted of either of these charges or of any reduced charge. 
Rather, 1 am asking that these charges be fully and finally dismissed with prejudice to allow us to get 
on with our relationship and our lives. 



7797 NORTH CAROLINA REGISTER April 3, 2000 14:19 



CONTESTED CASE DECISIONS 



1 7. I have freely and voluntarily asked that this affidavit be prepared for me. 1 further state that no one has 

threatened me or promised me anything in exchange and I do so fully understanding what 1 am doing. 

This the 8* day of March, 1996. 

/s/Pamela Nicole Brown 
Pamela Nicole Brown 

Swom to and subscribed for me this the 1 1 * day of March, 1 996. Witness my hand and notarial seal. 

/s/Sheila Marshbum 
Notary Public 
My Commission Expires: 8/6/96 



31. The affidavit of Pamela Brown was produced in District Court and relied upon by the Court and the District Attorney in 
the disposition of the criminal charges against Petitioner. The Assault inflicting serious injury charge was dismissed in reliance on this 
affidavit and Petitioner entered a plea of guilty to domestic criminal trespass, which was continued on a prayer for judgment. Pamela Brown 
knew at the time she executed this affidavit that it would be produced in and relied upon by the Court. 

32. Pamela Brown submitted an affidavit which was relied upon the district court criminal proceeding against Petitioner. 
Pamela Brown gave swom testimony in this contested case hearing which completely conflicted with her earlier affidavit. Her testimony 
also conflicted with that of Deputy Cahoon who established that Petitioner came out of the trailer before the deputy could get to the door, 
while Pamela Brown testified that Deputy Cahoon came inside the trailer and saved her Ufe by preventing Petitioner from cutting her. 

33. Having heard the testimony and observed the demeanor of Pamela Brown, Deputy Cahoon, attomey Allen Foster, and 
others, and having compared Pamela Brown's affidavit to her live testimony in this hearing, I fmd that Pamela Brown's testimony in this 
hearing lacks credibility; may represent perjury, either in her earher affidavit or in this hearing; and is hereby disregarded as unreliable. 

34. Respondent was notified in April, 1 996 that Petitioner had criminal charges pending against him regarding the February 
12, 1996 incident Respondent completed its investigation and issued a letter of proposed suspension to Petitioner on November 30, 1998. 

35. The Commission may suspend, revoke, or deny the certification of a criminal justice officer when the Commission fmds 
that the applicant for certification or the certified officer fails to meet or maintain the minimum employment requirements standard that every 
law enforcement officer shall be of good moral character required by 12 NCAC 9A .0204(b)(2) and 12 NCAC 9B .0101(3). 

CONCLUSIONS OF LAW 

1 . The parties properly are before the Office of Administrative Hearings. The Office of Administrative Hearings has 
jurisdiction of this contested case pursuant to Chapters 17C and 150B of the North Carolina General Statutes. 

2. North Carolina General Statutes § 14-33(c)(l), assault inflicting serious injury, constitutes a Class B Misdemeanor as set 
forth in N.C. Admin. Code tit. 12, r. 9A.0103(22)(b) (April 1999) and the North Carolina Class B Misdemeanor Manual as adopted by the 
Commission. 

3 . North Carolina General Statutes Section 1 4- 1 34.3 , domestic criminal trespass, constitutes a Class A Misdemeanor as set 
forth in N.C. Admin. Code tit. 12, r. 9A.0103(22)(a) (April 1999). 

4. Petitioner's guilty plea on March 1 9, 1 996 to Domestic Criminal Trespass as part of a plea bargain involving a prayer 
for judgment continued, under the facts, testimony, and two year delay in investigation of this case, does not indicate lack of good moral 
character. 

5. Considering the testimony and other evidence produced in this contested case, having set aside the testimony of Pamela 
Brown as blatantiy unreliable, the charge and allegation against Petitioner that he committed the offense of Assault Inflicting Serious Injury 
by striking blows upon Pamela Brovm on February 1 2, 1 996 is not supported by the evidence. 



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CONTESTED CASE DECISIONS 



PROPOSAL FOR DECISION 

Based upon the foregoing findings of fact and conclusions of law, it is hereby proposed that Respondent's proposed suspension 
of Petitioner's correctional officer certification for five years for commission of the Class B Misdemeanor offense of Assault Inflicting 
Serious Injury and indefinitely for lack of good moral character be dismissed as not supported by the evidence. 

ORDER 

IT IS HEREBY ORDERED that the agency serve a copy of the Final Decision on the Office of Administrative Hearings, 6714 
Mail Service Center, Raleigh, North Carolina 27699-6714, in accordance with N.C.G.S. §150B-36(b). 

NOTICE 

The agency making the final decision in this contested case is required to give each party an opportunity to file exceptions to this 
Proposal for Decision, and to present written arguments to those in the agency that will make the final decision. N.C.G.S. § 1 50B-36(a). The 
agency is required to serve a copy of the Final Decision on all parties and to fiimish a copy to the parties' attomey of record and to the Office 
of Administrative Hearings. N.C.G.S. §150B-36(b). 

The agency that will make the final decision in this contested case is the North Carolina Criminal Justice Education and Training 
Standards Commission. 

This the 25* day of February, 2000. 



Beecher R. Gray 
Administrative Law Judge 



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CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 
COUNTY OF WARREN 



IN THE OFFICE OF 

ADMINISTRATIVE HEARINGS 

99 0SP1157 



DENNIS W. RETZLAFF, 
Petitioner, 



WARREN COUNTY BOARD OF HEALTH, 
Respondent 



RECOMMENDED DECISION 



This matter came on for hearing before the undersigned Administrative Law Judge on December 1 , 1 999. The Petitioner herein 
was present at the hearing and represented by his attomey, David P. Voerman. The Respondent also appeared at the hearing, and were 
represented by their attomey, Ahson R. Bost, of the law firm of Womble, Carlisle, Sandridge & Rice. The hearing commenced on December 
1, 1999, at 9:00 a.m., and continued through December 2, 1999. 

Based on the matters presented at the hearing, the exhibits introduced therein, the pleadings in the case, and all other matters 
appearing of record in this matter, and after considering the fmal argument of both parties, the ALJ makes the following recommended 
Findings of Fact, by the preponderance of the evidence, enters his recommended Conclusions of Law, based upon the Findings of Fact, and 
renders the Recommended Decision based on both the Findings and Conclusions: 

FINDINGS OF FACT 

1. The Petitioner, Dennis Retzlaff, resides at 109 Battle Avenue in Warrenton, North Carolina 27589. He was employed 
as the Health Director in Warren County since August of 1985. 

2. The Petitioner was dismissed fi"om employment on September 1 , 1 999, by a dismissal letter, which was dated the same 
date. The dismissal letter was received by the Petitioner on September 2, 1999. The Respondent, the Warren County Board of Health, is a 
duly formed Board of Health, existing under the laws of the State of North Carolina, with jurisdiction over the Health Department in Warren 
County. 

3. As the Health Director in Warren County, the Petitioner, Retzlaff, is subject to the State Personnel Act, and has all of the 
rights and privileges existing under such Act that a career State Employee would enjoy. 



follows: 



4. The relevant background facts leading up to the dismissal of the Petitioner are as 



a. The Petitioner, for many years, served as a dedicated Health Director in Warren County. He worked long hours, 
was efficient, and performed his job in a satisfactory or better manner. 

b. Beginning in the year 1 996, Petitioner began to experience some difficulty with the performance of his position. 
He became noticeably moody, appeared to be tired at many times, began to work other than normal hours, and generally 
seemed to be less focused on his job as the Health Director. 

c. The Petitioner's attendance at the Health Department declined, and he became less available to the staff. He 
would frequently work hours, for example, where he would come in very early in the morning and would leave in the 
middle of the day. He was extremely fatigued and tired appearing during the course of the day. 

d. In the late fall of 1 996, and the early winter of 1 997, the Board of Health expressed concerns in respect to 
performance of certain parts of the Petitioner's job. One of these concems centered around the landfill in Warren County. 
The Board ultimately determined that the Petitioner had not handled the matter in respect to the closing of the landfill 
correctly, and, on February 7, 1997, issued the Petitioner an "Official Letter of Reprimand" concerning performance of 



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1800 






CONTESTED CASE DECISIONS 



his job as the Health Director over the previous twelve (12) months. (See Petitioner's Exhibit No. 17.) 

e. The "Letter of Reprimand" listed four (4) concerns in respect to the Petitioner's performance of his job, in 

addition to criticizing him for the manner in which he had handled the landfill situation. The letter, on its face, did not 
advise Petitioner of any appeal rights, did not advise Petitioner that fiirther letters or disciplinary actions could be taken 
based upon this letter, did not identify itself as a "written warning" in respect to performance issues, and generally did not 
comply with the provisions of 25 NCAC 1 1.2305 concerning the issuance of "written warnings" and the contents thereof 



f. When the Petitioner began to experience these problems with his job, he advised the Warren County Board of 
Health, and other members of the Health Department that he had sought treatment from Dr. Michael Zarzar beginning 
in 1 995 for depression. A summation of Dr. Zarzar's treatment and opinions appear in Petitioner's Exhibit No. 23, which 
was admitted during the course of the hearing. In 1 996 and 1 997, Petitioner was diagnosed with major depression, which 
affected his ability to perform his job. Dr Zarzar treated the Petitioner during 1 996, 1 997 and 1 998 with a regimen of anti- 
depressant drugs in the hope that his depression would improve and his concentration would return to its prior levels. 

g. After trying several different anti-depressants, it was felt that the depression was being controlled. Retzlaff 
advised the Board that he was taking medication and it was hoped that his depression would improve and he would be 
able to improve his performance. 

h. During the year 1997, the Petitioner, however, continued to experience difficulties in respect to concentrating, 

and sleeping. He was still experiencing mood swings, was tired during the day, and was having difficulty performing 
despite the medication. The Petitioner felt as if this was attributable to the various drugs that he was taking, in an effort 
to try to control his depression. 

i. On February 16, 1998, the Warren County Board of Health, through their then Chairman Ruby Jones, issued 

another letter to the Petitioner which was identified as an "Official Warning" and which specifically concerned an incident 
which took place on December 30, 1 997 involving the Warren County Manager. That warning was introduced during 
the course of this hearing as Petitioner's Exhibit No. 16. 

j. The incident in question in the February 16, 1998, warning involved an argument and dispute between the 

Petitioner and Loria D. Williams, who was the County Manager for Warren County. On December 30, 1997, the 
Petitioner and Ms. Williams became involved in a dispute, in her office, over whether or not she had granted a request 
submitted by the Petitioner in a timely manner. During the course of this argument, the Petitioner stood in the doorway 
of Ms. Williams office, and, according to her, blocked her way in a manner which she considered to be "threatening." 

k. No actual physical confrontation occurred between the Petitioner and Ms. Williams on that date, nor were any 

actual threats of physical violence made. 

1. The February 16, 1998, written warning also cited Petitioner's ability to work with his peers, his response to 

advice, and indicated to him that he "must be able to work with the system in a cooperative and productive manner." The 
February 16 letter, in addition, indicated that it was a "Second Written Warning" and advised the Petitioner that "only 2 
written warnings are required prior to dismissal." 

m. The February 1 6, 1 998, letter provided the Petitioner with no indication of any appeal rights, but did advise him 

that " any other incident of unprofessional threatening behavior may result in your dismissal." 

n. None of the matters addressed in the February 7, 1 997, reprimand conceming the four areas addressed in respect 

to the performance of the Petitioner's duties were readdressed in the February 16, 1998, written warning. 

o. While the February 1 6, 1 998, letter also referenced the Petitioner's "personal conduct" as being unacceptable 

at Warren County Board of Commissioners' meetings, no indication was made of the manner in which his conduct was 
unacceptable at such meetings. 

p. While the written warning, as issued on February 1 6, 1 998, did reference a specific area of alleged misconduct, 

it did not specify any time frame for improvements or corrections related to performance of duties. 



1801 NORTH CAROLINA REGISTER April 3, 2000 14:19 



CONTESTED CASE DECISIONS 



q. Between the time of the issuance of this warning and the Petitioner's dismissal on September 1, 1999, he had 

no other warnings issued to him, nor any other disciplinary action, which had occurred prior to his dismissal. 

r. No extension of the written warning of February 16, 1998, was issued to the Petitioner prior to his dismissal. 

s. In the early part of 1999, and continuing through the spring of 1999, the Petitioner began to experience even 

greater difficulty in respect to his attendance at work and his performance of every day work assignments. He had wade 
mood swings, was sleepy all of the time, and became easily upset. At this time, he was still under the care of Dr. Zarzar, 
and it was suggested that he seek additional medical treatment and care for his tiredness, and depression. 

t Dr. Zarzar referred him to Dr. Boehlecke, at UNC Memorial Hospital, Chapel Hill, for the purpose of 

conducting sleep studies. As a result of this referral, it was discovered that Petitioner suffered from "sleep apnea" which 
is a well-recognized disease and which disease evidences itself in the type of symptoms which the Petitioner had 
experienced from 1 996 until 1 999 in respect to the performance of his job, his attendance at work, his constant tiredness, 
mood swings, his becoming easily upset, and all of the other matters which evidenced themselves in the manner in which 
he was having difficulty performing his job as Health Director. 

u. According to the testimony of both Dr. Zarzar and Dr. Boehlecke, the Petitioner had suffered from sleep apnea 

for some time, though it was undiagnosed, and this disease essentially deprived him of the normal sleep sequence that 
persons need to be able to fiinction on an appropriate level in their job and in respect to personal matters. 

V. Petitioner' s condition of sleep apnea is a disease, which caused the Petitioner to not be able to sleep like a normal 

person. Even though the Petitioner believed that he was getting enough sleep, he was subconsciously awakening many 
times during the course of a normal hour of what he believed to be sleep. Sleep apnea is caused by the deprivation of 
oxygen to the brain during the sleep cycle to the brain. In the Petitioner's case, this deprivation of oxygen caused him to 
subconsciously "wake up" as many as 20 to 25 times during the course of what would otherwise be a normal hour's worth 
of sleep. 

w. The Petitioner began to receive treatment through the use of a nasal CPAP shortly before his dismissal. His first 

freatment was prescribed on July 9, 1999, and was continuing at the time that he was dismissed. 

X. Sleep apnea and depression normally occur together. In the Petitioner's case, the symptoms of depression that 

manifested themselves starting in the year 1 996 were most likely, according to Dr. Boehlecke, associated with existing 
sleep apnea that was undiagnosed at that time. 

y. Sleep apnea is a permanent condition. The prognosis for persons, like the Petitioner, who suffer from sleep 

apnea, but who receive treatment and therapy is good. Dr. Boehlecke testified that it would normally take a period of three 
to six months to recognize improvement in mood, concentration, and job performance as a direct result of sleep apnea 
therapy. 

z. In July of 1 999, as soon as the Petitioner found out that he suffered from this disease, he advised the Board of 

Health of his medical diagnosis, the fact that he was undergoing treatment, and the nature of the treatment, along with the 
prognosis. The Petitioner provided, to the Board, in July of 1 999, Petitioner's Exhibit No. 2 1 , which describes the disease, 
the symptoms thereof, and the treatment recommended by professionals. 

aa. On August 1 0, 1 999, the Petitioner attended a Board of Health meeting, along with Loria Williams, the County 

Manager. The Petitioner had become involved in a dispute with Ms. Williams, at that time, concerning the processing 
of various requests that he had submitted to her. The Petitioner had also become involved in an ongoing situation in 
respect to the employment of Ms. Jeanie Fortier and the resignation of Ms. Lou Ann Elam as a Health Department 
employee. The Board of Health had concerns over the employment of Ms. Jeanie Fortier and her subsequent resignation 
within a short period of time of her employment She had been hired to fill a vacancy which had existed for a long period 
of time as the Home Health Director for the Health Department. 

bb. Ms. Lou Ann Elam was employed as a Nursing Director at the Health Department and had been employed in 

that position for a lengthy period of time. 



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CONTESTED CASE DECISIONS 



cc. At the August 1 0, 1 999, meeting, the Petitioner repeatedly requested to address the Board in Executive Session. 

During the course of that meeting, it had become obvious to the Petitioner that the Board was considering his dismissal 
as the Health Director. 

dd. When the Board refused to go into Executive Session and excused the Petitioner from the meeting, the Petitioner 

made a comment to them that "these are the kind of things that get Boards of Health in trouble. You need to be careful," 
or some words to that effect 

ee. The Petitioner addressed his comment to the Board since he beUeved that they were going to take some action 

to try to dismiss him from employment. He meant the comment to be an indication that he would fight to keep his job. 

ff. On the morning of August 18,1 999, while in his office with another employee, Mr. Retzlaff received a call from 

Mr. Howard Torrdinson, the Chairman of the Board of Health. During the course of this telephone call, Mr. Tomlinson 
indicated to Mr. Retzlaff that he wanted him to attend a special August 1 8* meeting of the Board of Health, which would 
be a "predismissal conference." Mr. Tomlinson read a letter dated August 1 6, 1 999, which was introduced into evidence 
as Petitioner's Exhibit No. 1 , to the Petitioner during the course of that telephone conversation. 

gg. The August 16, 1999, letter was actually received by Mr. Retzlaff on August 21, 1999, and he was not 

physically provided with a copy of the letter prior to the predismissal conference held on August 1 8, 1999. 

hh. When Mr. Retzlaff found out there was going to be a "predismissal conference" conducted by the Board of 

Health, he became upset and hung up the telephone while speaking to Mr. Tomlinson. 

ii. On August 1 8, 1 999, the Board of Health called a meeting, which they termed a "predismissal conference." At 

that time, various matters and concerns of the Board of Health were discussed. The Petitioner received no prior written 
notice that the meeting would be a "predismissal conference" nor did he receive prior written notice of the matters to be 
discussed at the predismissal conference. 

jj. After the meeting held on August 18,1 999, which the Petitioner attended. Petitioner received on approximately 

August 21, 1999, a letter dated August 20, 1999, which was introduced into evidence as Petitioner's Exhibit No. 2. 

kk The letter of August 20, 1999, specified thirteen (13) incidences ofalleged"unsatisfactoryjob performance" for 

which the Board of Health was considering dismissing the Petitioner. 

11. hi addition, the letter specified seven (7) incidences of alleged "unacceptable personal conduct" that the Board 

was considering in respect to the Petitioner's dismissal from employment. 

mm. On August 25, 1999, the Petitioner, through his attorney, submitted to the Chairman of the Warren County 
Board of Health a letter requesting various documents, and requesting clarification and specifics regarding many of the 
instances of alleged unacceptable job performance and alleged "personal conduct". A copy of that correspondence was 
admitted as Petitioner's Exhibit No. 3. The Petitioner also requested that this information be provided to him prior to a 
scheduled Board of Health meeting on August 25, 1999, which the Petitioner had been asked to attend. 

nn. The Petitioner did not attend the August 25, 1999, meeting because his attorney had advised him that his 

attendance was not required. 

00. On August 27, 1999, the Chairman of the Warren County Board of Health responded to Petitioner's attorney's 

August 25, 1999, letter and denied the Petitioner additional information or clarification of the August 20* letter. (See 
Petitioner's Exhibit No. 5.) 

pp. A Board of Health meeting was scheduled for August 31, 1999. On August 31, 1999, via facsimile (see 

Petitioner's Exhibit No. 6), the attorney for the Petitioner corresponded with the Chairman of the Board of Health, raising 
certain procedural objections to the dismissal of the Petitioner, and again, requesting that Petitioner be provided with 
additional information so he could respond, in detail, to the August 20, 1999, letter. 



1803 NORTH CAROLINA REGISTER April 3, 2000 14:19 



CONTESTED CASE DECISIONS 



qq. The Warren County Board of Health met on August 31, 1999, and voted to dismiss the Petitioner from his 

position, with one member, Mr. Hendereon, voting against dismissal, and one member abstaining. The Petitioner did not 
attend the August 3 1 meeting. 

rr. By letter dated September 1, 1999 (See Petitioner's Exhibit No. 7), the Warren County Board of Health 

dismissed the Petitioner from employment for twenty (20) stated reasons, which were the same exact reasons that had been 
delineated in the August 20, 1 999, letter. The first 1 3 of those reasons in the September 1 , 1 999, letter had been classified 
as "unsatisfactory job performance" by the Board of Health in the August 20, 1 999, letter and the last seven of the reasons 
in the September 1 , 1 999, letter (Nos. 1 4-20) had been classified as "personal misconduct" in the August 20, 1 999, letter. 

ss. The first thirteen reasons in the dismissal letter, are, in fact, related to alleged failures in work performance as 

classified by the respondent in the August 20* letter. 

tt. In respect to reasons Nos. 14-20 contained in the September 1, 1999 letter, the Court makes the following 

specific findings: 

(1) Reason No. 1 4 provides no information concerning the dates, times, places, or circumstances in respect 
to any alleged unprofessional behavior, profanity, or loud exclamations regarding the County Manager to 
employees, despite the fact that the Petitioner requested on at least two occasions to be provided with the 
specifics in respect to that alleged personal misconduct 

(2) Reason No. 15, likewise, provides no specific information concerning dates, times, places, or 
circumstances, despite the Petitioner's request on at least two occasions for specific information in respect to 
this alleged reason for dismissal. 

(3) In respect to Reason No. 16, the Petitioner did hang up the telephone on the Chairman of the Board 
of Health on August 1 8, 1 999, after being advised that he would need to attend a "predismissal conference" that 
night 

(4) In respect to Reason No. 17, the AU adopts the Findings of Fact set forth hereinabove in respect to 
the Petitioner's conduct at the Board of Health meeting on August 10, 1999. 

(5) In respect to Reason No. 1 8, there is no specific date, time, or descriptions of the circumstances 
surrounding such alleged reason, which has been provided to the Petitioner, despite his request therefore on at 
least two occasions. The AU, based upon the matters presented during the hearing, however, finds the 
following in respect to this allegation: 

(a) The Petitioner prepared a confidential questionnaire after the 
resignation of Mrs. Elam. 

(b) This questionnaire was disseminated to various nursing 
personnel. 

(c) Petitioner received back one of the questionnaires, which had 
some disturbing answers on it. 

(d) Petitioner discussed this matter with Mrs. Elam. 

(e) Based upon that discussion the Petitioner decided not to use the 
questionnaire and disposed of it 

(f) Petitioner did not breach any confidentiality of any person 
when he did so, and engaged in no activity, which violated a 
work rule, or would otherwise be classified, in any way, as 
"personal misconduct" by engaging in this conduct 

(6) In Respect to Reason No. 19, Petitioner has not been provided with any specific information 
concerning the dates, times, places, or circumstances which such alleged statements were made. The AU finds, 
fiirthermore, from the credible evidence presented during the hearing that the Petitioner did not make any such 
statements. Furthermore, even if such statements were made, the ALJ finds that they did not rise to a level, 
which would constitute a personal conduct violation, justifying dismissal without prior warning. 

14:19 NORTH CAROLINA REGISTER April 3, 2000 1804 



CONTESTED CASE DECISIONS 



(7) In respect to Reason No. 20, the ALJ finds that there has been no specific information provided to 

Petitioner concerning the dates, times, places, or circumstances under which "intimidation" of employees or 
Board members has occurred. 

5. From the undisputed medical evidence presented during the course of the trial of this case, the AU finds as follows: 

A. Petitioner's diagnosed disease of sleep apnea affected his ability to sleep and to work. 

B. Petitioner's depression affected his ability to sleep and to work. 

C. Both diseases, in combination, caused the Petitioner to experience mood swings, tiredness, inability to 
concentrate, and difficulty in concentrating upon tasks, which had a direct affect on his ability to perform his position as 
the Health Director in Warren County. 

D. The fact that the sleep apnea was not diagnosed or discovered until 1 999, resulted in the Petitioner receiving 
treatment for only one condition, i.e. depression, rather than the necessary medical treatment that he needed for sleep 
apnea. As a result, the Petitioner's treatment was ineffective in respect to alleviating his symptoms and his prior treatment 
for depression, therefore, did not directly improve his ability to sleep and work. 

E. The Warren County Board of Health knew of these conditions prior to terminating the Petitioner. 

F. The Petitioner did not request a reasonable amount of time, as an accommodation, to receive effective treatment 
for his conditions, in order to show improvement in respect to his attendance, his work performance, his mood swings, 
his tiredness, and all of the other matters that directly impacted on his job performance. 

G. The Board did not offer any accommodation to the Petitioner. 

CONCLUSIONS OF LAW 

1 . Petitioner was a career State employee with the Warren County Board of Health at the time of his dismissal. Because he 

has alleged lack of just cause for his termination, the Office of Administrative Hearings has jurisdiction to hear the matter and issue a 
recommended decision to the State Personnel Commission, which shall render an advisory opinion to the Respondent. 



case: 



The ALJ concludes that the following procedural violations have occurred in respect to the Petitioner's dismissal in this 



A. The Petitioner has been dismissed for performance related reasons, without having two active warnings in his 
record prior to his dismissal, as required by 25 NCAC 1 1.2302. 

B. The Letter of Reprimand provided to the Petitioner in February of 1 997 does not constitute a "written warning" 
because it does not meet the requirement established under 25 NCAC 1 1.2305. 

C. The written warning, therefore, that was issued to the Petitioner in February of 1 998 was not a "second written 
warning" as indicated thereon, but was the first effective written waming that the Petitioner had received. 

D. Neither the February 1997 letter of reprimand or the February of 1 998 written waming satisfied the particular 
requirements of 25 NCAC 11.2305, or 25 NCAC 1 1.2308. 

E. Furthermore, neither the letter of reprimand nor the written waming provided the Petitioner with any applicable 
appeal rights as required by 25 NCAC 1 1.2309. 

F. The February 1 997 letter of reprimand, since it was not a written waming, was not an active disciplinary action 
at the time of the dismissal of the Petitioner, in accordance with 25 NCAC 11.2309(b). 

G. The written waming given to the Petitioner on February 16, 1998, had expired as of August 16, 1999, since 



1805 NORTH CAROLINA REGISTER April 3, 2000 14:19 



CONTESTED CASE DECISIONS 



eighteen (18) months had passed since the warning and the Petitioner had no other active disciplinary warning or action 
within that period of time. Furthermore, the Respondents had not extended the written warning in writing as required. 
Therefore, the February 1998 written warning had expired prior to Petitioner's dismissal under the provisions of 25 
NCAC 11.2309(b). 

H. The Petitioner had not been given notice of a predismissal conference, in writing, prior to the conference being 

held on August 18,1 999, as required by 25 NCAC 1 1.2308(4)(c). 

I. A dismissal letter, in respect to dismissal for unsatisfactory job performance, and the reasons cited therefore, was 

not effective, because Petitioner had not received the prior warnings, which would justify his dismissal for unsatisfactory 
job performance. 

J. In respect to the specific reasons set forth in the dismissal letter which allegedly constitute personal conduct, the 

AU finds that there were not specific reasons given for the alleged violations, including the date, time, place, and specific 
information in respect thereto, despite the repeated request on the part of the Petitioner to be provided with this 
information and this is a violation of 25 NCAC 11.2304(e). 

3. The ALI concludes that the procedural violation in respect to the predismissal conference would, at a minimum, entitle 
the Petitioner to back pay fi"om the date of his dismissal until the date determined appropriate by the Commission. (See 25 NCAC 
lB.0432(c).) 

4. In respect to the procedural violations in respect to giving specific reasons for dismissal, the AU finds that the Petitioner 
would be entitled to, at a minimum, back pay, attorney's fees, or both, under the provisions of 25 NCAC IB. 0432(b). 

5. In respect to the procedural violations concerning dismissal for performance related reasons without being provided two 
prior written warnings, or such warnings having become inactive, the ALT finds that the Petitioner would be entitled to the fiill gambit of 
relief, including reinstatement, back pay, attomeys fees, and all of the continued benefits of State employment Irom the date of his dismissal, 
since dismissal for performance related reasons without warnings would constitute a lack of just cause for the Petitioner's dismissal. 

6. The AU finds, based upon the preponderance of the evidence, fiirthermore, that Petitioner has carried his burden of proof 
in demonstrating that the facts, as found, in respect to his dismissal irom employment, did not rise, either individually, or in combination, to 
the level of a personal conduct violation, as defined under 25 NCAC 11.2304, such that the Petitioner's dismissal would be justified. 

7. Therefore, the AU concludes that the Petitioner has met his burden of proof of demonstrating that his dismissal for either 
performance related matters or personal conduct was done without j ust cause, and, therefore, the Petitioner would be entitled to the fiill gambit 
of remedies, including reinstatement, back pay, attorney's fees, and all the continuing benefits of State employment since the date of his date 
of his dismissal. 

8. The Petitioner did not carry his burden of proving that he was discriminated against because of a handicapping condition. 

RECOMMENDED DECISION 
In accordance with the foregoing Findings of Fact and Conclusions of Law, the AU RECOMMENDS the following: 

1 . That the Petitioner be reinstated to his position as Health Director of Warren County with all rights of continuous 
employment fi-om September 1, 1999, the date of his dismissal. 

2. That the Petitioner be awarded all back pay for the period of time between his dismissal and his reinstatement 

3. That the Petitioner be awarded attomey's fees. 

ORDER 

The Agency making the FINAL DECISION in this case is required to give each party an opportunity to file exceptions to the 
Recommended Decision and to present written arguments to the party in the Agency who will make the Final Decision. N.C.G.S. § 1 50B- 



14:19 NORTH CAROLINA REGISTER April 3, 2000 1806 



CONTESTED CASE DECISIONS 



36(a). 

The Agency is required by N.C.G.S. § 1 50B-36(b) to serve a copy of the Final Decision on all parties and to furnish a copy to the 
parties' attorney of record at the Office of Administrative Hearings. 

The Agency that will make the Final Decision in this contested case is the Respondent. 

NOTICE 

In order to appeal a Final Decision, the person seeking review must file a Petition in the Superior Court of Wake County or in the 
superior court of the county where the person resides. The Petition for Judicial Review must be filed within thirty (30) days after the person 
is served with a copy of the Final Decision. N.C. Gen. Stat § 1508^6 describes the contents of the Petition and requires service of the 
Petition on all parties. 

This the 22"* day of February, 2000. 



Fred G. Morrison Jr. 

Senior Administrative Law Judge 



■ 



1807 



NORTH CAROLINA REGISTER 



Aprils, 2000 



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